Madhya Pradesh High Court
Samuel Daniel vs The State Of Madhya Pradesh on 14 November, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Prakash Chandra Gupta
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
------------
WRIT PETITION NO.6263 OF 2021 (REV. SURESH CARLETON & ORS. VS. THE STATE OF M. P.) & WRIT PETITION NO.1018 OF 2021 (AMRATANSH NEMA VS. THE STATE OF M. P.) & WRIT PETITION NO.3339 OF 2021 (L. S. HERDENIYA & ORS. VS. THE STATE OF M. P.) & WRIT PETITION NO.5217 OF 2021 (AZAM KHAN VS. THE STATE OF M. P.) & WRIT PETITION NO.7492 OF 2021 (RICHARD JAMES & ORS VS. THE STATE OF M. P.) & WRIT PETITION NO.8810 OF 2021 (ARADHANA BHARGAVA VS. THE STATE OF M. P.) & WRIT PETITION NO.12238 OF 2021 (SAMUEL DANIEL VS. THE STATE OF M. P.) Dated : 14-11-2022 Mr. Manoj Sharma, Senior Advocate with Ms. Lija Merin John, Advocate and Dr. Umesh Manshori, Advocate for the petitioners in W.P.No.6263/2021.
Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 2Mr. Manoj Sharma, Senior Advocate with Mr. Quazi Fakhruddin, counsel for the petitioner in W.P.No.12230/2021.
Ms. Sandhya Rajak, Advocate for the petitioner in W.P.No.5217/2021.
Mr. Himanshu Mishra, Advocate for petitioner in W.P.No.3339/2021.
Mr. Prashant Singh, Advocate General with Mr. H.S.Ruprah, Additional Advocate General, Mr. Bharat Singh, Additional Advocate General, Mr. Suyash Thakur, Government Advocate, Mr. Ankit Agrawal, Government Advocate and Mr. Aakash Malpani, Advocate for the respondents/State.
Heard on the question of admission and interim relief.
2. Learned Advocate General raised objection regarding maintainability of the petitions on twin grounds. Firstly, the relief claimed in the petitions is vague and Clause 7(2) of prayer clause does not specify as to which provisions of Madhya Pradesh Freedom of Religion Act, 2021 (hereinafter referred as 'Act of 2021') are unconstitutional. In absence of any specific relief being prayed for, the whole Act cannot be declared as ultra vires. Moreso, when petitioners are unable to show that whole Act is brought into force by the State without their being any legislative competence for the same. Secondly, the impugned Act of 2021 is almost similar to Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 (hereinafter referred as "1968 Adhiniyam"). The constitutionality of 1968 Adhiniyam was called in question before this Court and Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 3 ultimately matter travelled to Apex Court. The said case was decided by a Constitution Bench of Supreme Court in REV - Stainislaus vs. State of Madhya Pradesh and others, 1977 (1) SCC 677. The constitutionality of the 1968 Adhiniyam was upheld by the Supreme Court. The impugned Act of 2021 is almost similar and enacted by changing the 'flavour' (कलेवर) of 1968 Adhiniyam and hence petition is not maintainable.
3. Faced with this, Mr. Manoj Sharma, learned Senior Advocate submits that relief claims in W.P.No.6263/2021 is very specific which reads as under :-
"7.1 Strike down Sections 2(a), 2(b), 2(c), 2(d), 2(e), 2(i), 3, 4, 5, 6, 10 and 12 of the Madhya Pradesh Freedom of Religion Act, 2021.
7.2. Stay the operation of the Madhya Pradesh Freedom of Religion Act, 2021 as in direct contrast and opposition to the fundamental rights guaranteed under Articles 14, 19(1)(a), 19(1)(g), 21 and 25 of the Constitution of India.
7.3. Pass any other or further order(s) as this Court may deem fit and proper in the circumstances of the case."
4. So far rest of the petitions are concerned, he prays for and is granted permission to file appropriate applications to amend the petition/relief clause. Since one petition is clearly pregnant with specific relief clause, the respondents are not taken by surprise and were made aware about offending sections and grounds as taken by Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 4 the petitioners. Thus, we are not inclined to dismiss these petitions based on the first objection raised by learned Advocate General.
5. So far second objection of State is concerned, Shri Manoj Sharma, learned Senior Advocate submits that in the case of REV - Stainislaus (supra), the constitutionality of 1968 Adhiniyam was called in question only on the ground of alleged violation of Article 25 of the Constitution of India. If the provisions of impugned Act are examined in juxtaposition to the 1968 Adhiniyam, it will be clear that various provisions are differently worded.
6. Thus, Act of 2021 is not verbatim same if compared with the 1968 Adhiniyam. Apart from this, as per the legal journey, the constitutionality of provisions can now be tested on the anvil of legislative competence, breach of fundamental rights and right to privacy and other new grounds which are available to the petitioners. It is argued that in AIR 1951 SC 318 (State of Bombay vs. F. N. Balsara), the constitutionality of a statutory provisions was called in question. The Apex Court declared the law within the ambit of Article 141 of the Constitution. The similar question cropped up before Gujarat High court in W.P. (PIL No.12/2019) Peter Jagdish Nazarath vs. State of Gujarat. Learned Advocate General raised similar objection that since validity of Act in question has already been upheld by the Supreme Court in F. N. Balsara (supra), the constitutionality of the same again cannot be tested. The Gujarat High Court in its detailed order dated 23/08/2021 opined that there Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 5 are new grounds available now on the anvil of which constitutionality of same Act can be tested. This includes ground of 'right of privacy'. The Gujarat High Court opined that personal food preferences are related with 'right to privacy'. Thus, petitions cannot be dismissed as not maintainable. The impact of previous adjudication will be considered at appropriate stage i.e. final hearing.
7. We are in respectful agreement with the view taken and course adopted by the Gujarat High Court in the case of Peter Jagdish (supra). Resultantly, second objection raised by the learned Advocate General cannot be accepted at this stage. The writ petitions contain arguable points.
8. Accordingly, the petitions are admitted for final hearing.
9. Learned Advocate General prayed for and is granted three weeks' time to file para-wise return.
10. Rejoinder, if any, may be filed within 21 days' therefrom.
11. We have also heard the parties on the question of interim relief. The petitioners have prayed that impugned act is clearly unconstitutional and therefore during the pendency of these matters, the respondent/State be restrained from prosecuting anyone under the impugned M.P. Freedom of Religion Act, 2021 (Annexure-P/1).
12. To elaborate, learned counsel for the petitioners contended that the relevant provisions of 1968 Adhiniyam and impugned Act of 2021 are reproduced in juxtaposition in tabular form under para 5.16 of W.P. No. 12238/2021. The stand of the petitioners is that almost Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 6 similar enactment was introduced by Government of Gujarat which is called in question in a group of petitions including R/SCA No. 10304/2021 (Jamiat Ulema-E-Hind v. State of Gujarat). A Division Bench of Gujarat High Court headed by Hon'ble Chief Justice Mr. Vikram Nath (as his lordship then was) protected the petitioners. Similar protection is prayed for by the present petitioners' counsel.
13. In addition, it is urged that by State of Himachal Pradesh, the H.P. Freedom of Religion Act, 2006 (Act No. 5 of 2007) was introduced. The said Act and Rules made thereunder became subject matter of challenge in C.W.P. No. 438/2011 (Evangelical Fellowship of India Vs. State of H. P.). The Division Bench of the High Court allowed the petition to limited extent and Section 4 of the impugned Act of H.P. and Rule 3 of relevant Rules were held be violative of Article 14 of the Constitution. Rule 5 was also partly held to be ultra vires. Rest of the Act and Rule 3 were declared to be intra vires. Shri Manoj Sharma, learned Sr. counsel submits that the State Government assailed this judgment of Himachal Pradesh High Court before the Supreme Court but their appeal was dismissed for want of prosecution and no efforts were made by the State for its restoration. Thus, judgment (Evangelical Fellowship of India. supra) reported in 2012 SCC online H.P. 5554 has attained finality. By placing reliance on various paragraphs of this judgment, it is argued that the aim, object and foundation of impugned provisions of M.P. Act are almost similar and founded upon same logic. For this Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 7 reason also, the impugned act needs to be interfered with. A comparative chart is placed before us containing the relevant provisions applicable in State of M.P., Gujarat and H.P.
14. It is common ground of learned counsel for the petitioners that by way of introducing present Act unbridled, uncanalized and arbitrary powers are given to the authorities. The fundamental right of citizen to practice a religion, marry a person of his choice irrespective of caste and religion of his spouse is sought to be interfered with and taken away. If the impugned act is permitted to stand it will not only infringe the valuable fundamental rights but will disturb the harmony of the society. Every citizen has a valuable right not to disclose his belief. The citizen is under no obligation either to disclose his own religion or his intention to switch over to another religion. The religious belief is a matter personal to a citizen. State has no right to compel a citizen to disclose about his personal belief. Disclosure of religion or intention to change the religion may rather lead to communal tension and may endanger the life or limb of the convertee. The requirement of prior information before conversion as par the Act of 2021 violates fundamental right of a citizen.
15. Learned Senior counsel further contended that Section 5 of the impugned Act shows that in case of contravention of Section 3 imprisonment for a term which shall not be less than 1 year is prescribed but proviso thereof shows that if contravention is in relation to a minor, a woman or a person belonging to reserved category, the term of Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 8 imprisonment shall be for a period of two years. Thus, men and women and other categories are treated differently which is unconstitutional in nature.
16. The 'burden of proof ' is placed on the shoulders of a convertee or a person who has allegedly violated the provisions of the impugned Act. This runs contrary to the settled principle of criminal jurisprudence. If these provisions are permitted to stand, it will have 'chilling effect' on the citizens.
17. In support of his submissions learned Senior counsel placed reliance on Shreya Singhal Vs. Union of India 2015 (5) SCC 1, Shayara Bano Vs. Union of India and Ors. 2017 (9) SCC 1, Joseph Shine Vs. Union of India 2019 (3) SCC 39 ( para 107). For the purpose of showing 'standard of judicial scrutiny' and 'doctrine of proportionality', petitioners relied upon Anuj Garg and Ors. Vs. Hotel Association of India and Ors. 2008(3) SCC 1, Om Kumar and ors. Vs. Union of India 2001(2) SCC 386. The judgments of Supreme Court reported in Shafin Jahan Vs. Asokan Km 2018 (16) SCC 368 and Laxmibai Chandaragi B. and Anr. Vs. State of Karnataka and Ors. 2021 (3) SCC 360 were cited to contend that impugned enactment is perse unconstitutional therefore, petitioners are entitled to get interim protection. The whole intention shown for bringing the new Act is to take care of 'public order' submits Shri Manoj Sharma, learned senior counsel. No action in violation of impugned law will attract 'public order' at all. For this purpose, Ram Manohar Lohia Vs. State of Bihar and Anr. AIR 1966 SC 740 and Arun Ghosh Vs. State of West Bengal 1970 (1) SCC 98 were relied upon.
Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 918. Sounding a contra note, Shri Prashant Singh, learned Advocate General for the State submits that the petitioners are unable to establish that the impugned Act is introduced by the respondents without there being any competence for the same. The petitioners are claiming a blanket interim relief which cannot be granted. If interim relief is granted, it will amount to giving them final relief. It is contended that endeavour of the Court should be uphold the constitutionality of the enactment. Even if some portion of the enactment is unconstitutional, the remaining portion can be separated and upheld by applying the doctrine of severability. For the same purpose, Suresh Kumar Koushal and Anr. Vs. Naz Foundation and Ors. AIR 2014 SC 563 is relied upon. In addition, it is submitted that if it is possible to apply the principle of 'reading down', while examining a statutory provision, attempt should be made to clarify and read it down rather setting it aside.
19. At the cost of repetition, learned Advocate General for the State submits that the impugned Act is almost similar to 1968 Adhiniyam, constitutionality of which has been tested till Apex Court. Hence, these petitions are not maintainable.
20. The respondents have also prepared a comparative chart containing relevant provision of the impugned Act of Madhya Pradesh and Gujarat Freedom and Religion Act 2003 with its amendment upto 2021. By taking this court to the said comparative chart, Learned Advocate General urged that the previsions of Gujarat Act are more stringent whereas in Madhya Pradesh due care has been taken to ensure that Act cannot misused by anyone. It is further submitted that the interim protection granted by Gujarat High Court in the case of Jamait Ulma-E-Hind Gujarat (supra) is based on the line of argument of the Advocate Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 10 General. However, in the present matter, the line of argument of State is different and, therefore, since the provisions and argument both are different, said interim order dated 26.8.2021 is of no assistance to the petitioners.
21. The petitioners have not placed on record any material to show that the impugned Act has been misused by the authorities. The definition of 'fraudulent' in the Act of 2021 is founded upon the principle flowing from Section 25 of the Indian Penal Code (IPC). Thus, no fault can be found in the impugned Act. During the course of argument, learned Advocate General fairly submitted that in State of M.P. The relevant rules under the Act 2021 have not been notified till date. After obtaining instructions, it is submitted that rules are under preparation and will be introduced within two weeks. In nutshell, learned Advocate General opposed the interim relief.
22. Learned Advocate General also relied upon on Vijay Singh Gond and Ors. Vs. Union of India and Ors 2007(3) SCC 519 and Health For Millions Vs. Union of India and Ors. 2014 (14) SCC 496 to bolster his submission that no interim relief is due to the petitioners. Cellular Operators Association of India and Ors. Vs. Telecom Regulatory Authority of India and Ors. 2016(7) SCC 703 is pressed into service to show the scope of judicial review of subordinate legislation.
23. Learned counsel for the parties confined their arguments to the extent indicated above.
24. We have heard learned counsel for the parties on the question of interim relief at length.
Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 1125. The parties brought to our notice the different Acts introduced in the State of Madhya Pradesh, Gujarat and Himachal Pradesh (H.P.). The aim and object of the aforesaid acts is almost same. In order to appreciate the relevant provisions applicable in aforesaid three States, we deem it proper to reproduce the relevant portion from the comparative chart produced by the parties, which reads as under :-
S. Madhya Pradesh Gujarat Himachal
No.
1. Section 2 (1)(a) Section 2(a) Section 2(d)
"allurement" means and "allurement" means "inducement" shall
includes an act of offering offer of any include the offer of any
of any temptation in the temptation in the gift or gratification, form of any gift or form of- I) any gift either in cash or in any gratification, or material or gratification, kind or grant of any benefit, either in cash or either in cash or kind benefit either kind or employment or kind; pecuniary or otherwise. education in school run by (ii) grant of any any religious body, material benefit, "better life style, divine either monetary or pleasure or the promise otherwise;
of it thereof or
otherwise."
3. Section 2(1)(c) Section 2(b) Section 2(a)
"Conversion" means "convert" means to "Conversion" means
renouncing one's own make one person to renouncing one
religion and adopting renounce one, religion and adopting
another religion; but the religion and adopt another return of any person another religion;
already converted to the fold of his parental religion shall not be deemed conversion.
4. Section 2(1)(d) Section 2(c) Section 2(b) "force" includes a show "force" includes a "force" shall include of force or a threat of show of force or a show of force or threat injury of any kind.... threat of injury of of injury or threat of including threat of any kind including divine displeasure or Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 12 divine displeasure or threat of divine social ex- social ex-communication; displeasure or social communication ex-communication
5. Section 2(1)(e) Section 2 (d) Section 2(c) "Fraudulent" includes "fraudulent means" "fraud" shall include misrepresentation of any includes misrepresentation or kind or any other misrepresentation or any other fraudulent fraudulent contrivance. any fraudulent contrivance;
contrivance
impersonation by
false name, surname,
religious symbol or
otherwise.
7. Section 3(1) (a) Section 3 Section 3
"No person shall convert No person shall No person shall covert or attempt to convert, convert or attempt to or attempt to convert, either directly or convert, either either directly or otherwise, any other directly or otherwise, otherwise, any person person from one religion any person from one from one religion to to another by use or religion to another another by the use of practice of by use of force or by force or by inducement misrepresentation, force, allurement or by any or any any other undue influence, coercion, fraudulent means nor fraudulent means nor allurement or by any any fraudulent shall any person abet fraudulent means or by means or by any such conversion:
any of these means or by marriage or by Provided that any promise of marriage, nor getting a person person who has been shall any person abet or married or by aiding converted from one conspire such coversion: a person to get religion to another, in married nor shall any contravention of the person abet such provisions of this conversion. Section, shall be deemed not to have been converted.
10. Section 5 Section 4(1) Section 5 (1) Whoever contravenes whoever contravenes Any person the provisions of Section the provision of contravening the 3 shall, be punished with section 3 shall, provisions contained in imprisonment of either without prejudice to section 3 shall, without description for a term not any civil liability, be the prejudice to any less than one year but punished with civil liability, be which may extend to five imprisonment for a punishable with Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 13 years and shall also be term, which may imprisonment of either liable to fine of rupees extend to three years description which may twenty five thousand: and also liable to extend to two years or Provided that whoever fine, which may fine which may extend contravenes the extend to "rupees to twenty five thousand provisions of Section 3 in fifty thousand: rupees or with both:
respect of a minor or a provided that Provided that in case woman or a person whoever contravenes the offence is belonging to the the Provisions of committed in respect Scheduled Caste or Section 3 in respect of a minor, a woman Scheduled Tribe shall be of a minor, a woman or a person belonging punished with or a person to Schedule Castes or imprisonment of either belonging to Schedule Tribes, the description for a term Scheduled Caste or punishment of which shall not be less Scheduled Tribe imprisonment may than two years, but which shall be punished extend to three years may extend to ten years with imprisonment and fine may extend and shall also be liable to for a term which to fifty thousand fine of rupees fifty may extend to four rupees.
thousand. Provided years and also be further that whoever liable to fine which contravenes the may extend to rupees provisions of section 3 in one lakh.
respect of mass
conversion shall be
punished with
imprisonment for a term
of which shall not be less
than five years, but which
may extend to ten years
shall also be liable to fine
of rupees one lakh.
Provided also that in case
of a second or subsequent
offence mentioned in this
section is committed, the
term of imprisonment
shall not be less than five
years, and which may
extend to 10 years and
also fine
12. Section 10 Section 5(1) & (3) Section 4 & Rule 3, 5
(1) One who desires to (1) whoever converts (1) A person
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convert his religion, any person from one intending to convert shall give a declaration religion to another from one religion to to that effect 60 days either by performing another shall give prior to such conversion any ceremony by prior notice of at least to the District himself for such thirty days to the Magistrate in such form conversion as a District Magistrate of as maybe prescribed. religious priest or the district concerned (2) Any religious priest takes part directly or of his intention to do who intends to organize indirectly in such so and the District conversion shall give 60 ceremony shall take Magistrate shall get the days prior notice to the prior permission for matter enquired into by District Magistrate in such proposed such agency as he may such form as may be conversion from the deem fit: Provided that prescribed. District Magistrate no notice shall be (3) The District concerned by required if a person Magistrate, after receiving applying in such reverts back to his the information under form as may be original religion. (2) sub-section (1) and (2) prescribed by rules. Any person who fails shall give (3) Whoever fails, to give prior notice, as acknowledgment of such without sufficient required under sub-
prior notice in such cause to comply with section (1) shall be manner as may be the provisions of punishable with fine prescribed. sub-sections (1) and which may extend to (4) Whoever contravenes (2) shall be punished one thousand rupees. the provisions of sub- with imprisonment section (2) shall be for a term, which Rule 3 punished with may extend to one (1) Any person imprisonment for a term year or with fine domiciled in the State, which shall not be less which may extend to intending to convert than three years but may rupees one thousand his religion, shall give extend to five years and or with both a notice to the District shall also be liable to fine Magistrate of the which shall not be less District in which he is than rupees fifty permanently resident, thousand. prior to such (5) No court shall take conversion, Form-A .
cognizance of the offence (2) The District committed under this Magistrate shall cause section without prior all notices received sanction of the concerned under sub- rule (1) of District Magistrate. rule 3 to be entered in a Register of Notices and Complaints of Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 15 conversion in Form-B, and may within fifteen days from the receipt of said notice, get the matter enquired into by such agency as he may deem fit and record his findings as regards the particulars of notice given: Provided that the person giving notice and any other person likely to be prejudicially affected shall be given adequate opportunity to associate himself with any such enqiury.
Rule 5
If after enquiry under
rule 3 or rule 4, as the
case may be, the
District Magistrate
records a finding that a
conversion has taken
place or is likely to
take place through the
use of force of
inducement or without
the requisite notice, he
shall enter the
particulars of the case
in the Register of
Forced conversion in
Form-C and refer the
case alongwith all
material adduced
during the course of
the enquiry to the
police station in which
the person is resident
or where the
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conversion is intended
or done for registration
of a case and its
investigation.
26. Prima facie, a comparative reading of Section 3 of impugned Act of 2021 with corresponding provision of Gujarat Act shows that promise of marriage or marriage is also a facet which may attract Section 3(1)(a) of the Act in Madhya Pradesh like corresponding provision of Gujarat Act. The Division Bench of Gujarat High Court in the case of Jamait Ulma-E-Hind Gujarat Vs. State of Gujarat ( R/ Special Civil Application No. 10304 of 2021) dated 26.08.2021 consisting of Hon'ble the Chief justice Vikram Nath (as His Lordship then was) and Hon'ble Mr. Justice Biren Vaishnav passed an interim order. Relevant portion of which reads as under :-
"8. We are therefore of the opinion that, pending further hearing the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A shall not operate merely because of a marriage is solemnized by a person of one religion with a person of another religion without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion".
(Emphasis supplied)
27. The Apex Court in catena of judgments poignantly held that if two adults decide to solemnize marriage, it is their personal choice which is integral to Article 21 of the Constitution of India. In Lata Singh Vs. State of Uttar Pradesh and Ors. (2006) 5 SCC 475 this right of adults was duly recognized by the Apex Court. After following the judgment of Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 17 9 Judges Bench delivered in K.S. Puttaswamy Vs. Union of India 2017(10) SCC 1, in a recent judgment in Laxmibai Chandaragi B ( Supra) the Apex Court held as under:-
"11.We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy. [Shakti Vahiniv.Union of India, (2018) 7 SCC 192 :
(2018) 3 SCC (Civ) 580 : (2018) 3 SCC (Cri) 1] It is in that context it was further observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not expected to succumb to the concept of "class honour" or "group thinking". [Asha Ranjan v. State of Bihar, (2017) 4 SCC 397 : (2017) 2 SCC (Cri) 376]
12. In Shafin Jahan v. Asokan K.M. [Shafin Jahan v.
Asokan K.M., (2018) 16 SCC 408 : (2020) 1 SCC (Cri) 884] this Court noticed that the society was emerging through a crucial transformational period. [Lata Singh v. State of U.P., (2006) 5 SCC 475 :
(2006) 2 SCC (Cri) 478] Intimacies of marriage lie within a core zone of privacy, which is inviolable and even matters of faith would have the least effect on them. The right to marry a person of choice was held to be integral to Article 21 of the Constitution of India. In this behalf, the judgment of the nine-Judge Bench in K.S. Puttaswamy (Privacy-9 J.) v. Union of India [K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1] may also be referred to where the autonomy of an individual inter Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 18 alia in relation to family and marriage were held to be integral to the dignity of the individual.
(Emphasis supplied)
28. Para 298 of K.S. Puttaswamy (Supra) is worth mentioning :-
"298. Privacy of the individual is an essential aspect of dignity. Dignity has both an intrinsic and instrumental value. As an intrinsic value, human dignity is an entitlement or a constitutionally protected interest in itself. In its instrumental facet, dignity and freedom are inseparably intertwined, each being a facilitative tool to achieve the other. The ability of the individual to protect a zone of privacy enables the realisation of the full value of life and liberty. Liberty has a broader meaning of which privacy is a subset. All liberties may not be exercised in privacy. Yet others can be fulfilled only within a private space. Privacy enables the individual to retain the autonomy of the body and mind. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary State action. It prevents the State from discriminating between individuals. The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 19 personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy. An artist finds reflection of the soul in a creative endeavour. A writer expresses the outcome of a process of thought. A musician contemplates upon notes which musically lead to silence. The silence, which lies within, reflects on the ability to choose how to convey thoughts and ideas or interact with others. These are crucial aspects of personhood. The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self- determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 20 the exercise of liberty. The Constitution does not contain a separate article telling us that privacy has been declared to be a fundamental right. Nor have we tagged the provisions of Part III with an alpha- suffixed right to privacy : this is not an act of judicial redrafting. Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty and freedom which the Constitution has recognised. Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination."
(Emphasis supplied)
29. A conjoint reading of aforesaid judgments of Supreme Court makes it clear like noon day that marriage, sexual orientation and choice in relation to these aspects are in the realm of right to privacy and it has a direct relation with the dignity of the individual.
30. Justice Deepak Gupta (as His Lordship then was) speaking for Division Bench of H.P. High Court in Evangelical Fellowship of India and Anr. Vs. State of H.P. 2012 SCC Online HP 5554 has opined as under :-
"37. A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. No doubt, the right to privacy is, like any other right, subject to public order, morality and the larger interest of the State. When rights of individuals clash with the larger public good, then the individual's right must give way to what is in the larger public interest. However, this Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 21 does not mean that the majority interest is the larger public interest. Larger public interest would mean the integrity, unity and sovereignty of the country, the maintenance of public law and order. Merely because the majority view is different does not mean that the minority view must be silenced.
38. It has been strongly urged By Mr. R.K. Bawa, learned Advocate General, on behalf of the State that the right to privacy is not an indefeasible right. There can be no quarrel with this proposition. However, the State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual. A man's home is his castle and no invasion into his home is permissible unless justified on constitutional grounds. A man's mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in such a manner that it will cause public disorder or affect the unity or sovereignty of the country.
39. Why should any human being be asked to disclose what is his religion? Why should a human being be asked to inform the authorities that he is changing his belief? What right does the State have to direct the convertee to give notice in advance to the District Magistrate about changing his rebellious thought?
40. A person's belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief. The only justification given is that public order requires that notice be given. We are of the considered view that in case of a person changing his religion and notice Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 22 being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem.
41. In case such a notice is issued, then the unwarranted disclosure of the voluntary change of belief by an adult may lead to communal clashes and may even endanger the life or limb of the convertee. We are not, in any manner, condoning or espousing conversions especially by "force", "fraud" or "inducement". Any conversion, which take place by "force", "fraud" or "inducement", must be dealt with strictly in accordance with law which we have held to be valid. At the same time, the right to privacy and the right to change the belief of a citizen cannot be taken away under the specious plea that public order may be affected. We are unable to comprehend how the issuance of a notice by a convertee will prevent conversions by "fraud", "force" or "inducement". In fact, this may open a Pandora's box and once notice is issued, this may lead to conflicts between rival religious outfits and groups. No material has been placed on record by the State to show that there has been any adverse effect on public order by any conversion in the State whether prior to or after the enactment of the Himachal Pradesh Act. In fact, till date only one case has been registered under this Act.
42. As observed by us above, conversions may not require any ceremony in some religions and how will the Government determine when the thought process of a person has changed. A person who belongs to A religion and willingly wants to convert to B religion will not change his religion overnight, except in case of forced conversions or conversions which take place Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 23 due to payment of cash or other material gifts. Change of religion, when it is of its own volition, will normally be a long drawn out process. If a person of his own volition changes his religion, there is no way that one can measure or fix the date on which he has ceased to belong to religion A and converted to religion B. This has to be an ongoing process and therefore, there can be no notice of thirty days as required under the Himachal Pradesh Act.
43. Furthermore, we are of the view that the proviso to Section 4 is also discriminatory and violative of Article 14 of the Constitution of India. "Original religion" has not been defined in the Himachal Act. According to Dr. Subramanian Swamy, the original religion is Hindu religion alone. We cannot accept this submission of his. The general consensus of opinion used was that the original religion would be the religion of the convertee by birth, i.e. the religion he was born into.
44. We fail to understand the rationale why if a person is to revert back to his original religion, no notice is required. It was urged before us that since he was born in his religion and knows his religion well, therefore, it was thought that while reverting back to his original religion, no notice be issued. This argument does not satisfy the parameters of Article 14 of the Constitution of India. Supposing a person born in religion A converts to religion B at the age of 20 and wants to convert back to religion A at the age of 50, he has spent many more years, that too mature years, being a follower of religion B. Why should he not be required to give notice?
45. Another question which is troubling us is if a person born in religion A, converts to religion B, then converts to religion C and then to religion D. If he Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 24 converts back to religion B or C, he is required to give notice, but if he converts back to religion A, then no notice is required. This also, according to us, is totally irrational and violative of Article 14 of the Constitution of India."
(Emphasis supplied)
31. In Joseph Shine (Supra) it was ruled as under :-
"103. Further, the real heart of this archaic law discloses itself when consent or connivance of the married woman's husband is obtained -- the married or unmarried man who has sexual intercourse with such a woman, does not then commit the offence of adultery. This can only be on the paternalistic notion of a woman being likened to chattel, for if one is to use the chattel or is licensed to use the chattel by the "licensor", namely, the husband, no offence is committed. Consequently, the wife who has committed adultery is not the subject-matter of the offence, and cannot, for the reason that she is regarded only as chattel, even be punished as an abettor. This is also for the chauvinistic reason that the third-party male has "seduced" her, she being his victim. What is clear, therefore, is that this archaic law has long outlived its purpose and does not square with today's constitutional morality, in that the very object with which it was made has since become manifestly arbitrary, having lost its rationale long ago and having become in today's day and age, utterly irrational. On this basis alone, the law deserves to be struck down, for with the passage of time, Article 14 springs into action and interdicts such law as being manifestly arbitrary. That legislation can be struck down on the ground of manifest arbitrariness is no longer open to any doubt, as has been held by this Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 25 Court in Shayara Bano v. Union of India [Shayara Bano v. Union of India, (2017) 9 SCC 1 : (2017) 4 SCC (Civ) 277] , as follows : (SCC p. 99, para 101) "101. ... Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14."
107. The dignity of the individual, which is spoken of in the Preamble to the Constitution of India, is a facet of Article 21 of the Constitution. A statutory provision belonging to the hoary past which demeans or degrades the status of a woman obviously falls foul of modern constitutional doctrine and must be struck down on this ground also."
(Emphasis supplied)
32. The judgment of Puttaswamy (supra) was again followed in the case of Shafin Jahan (supra) the following paragraphs are relevant :-
"86. The right to marry a person of one's choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 26 of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.
87. In K.S. Puttaswamy v. Union of India [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] , this Court in a decision of nine Judges held that the ability to make decisions on matters close to one's life is an inviolable aspect of the human personality: (SCC pp. 498-99, para 298) "298. ... The autonomy of the individual is the ability to make decisions on vital matters of concern to life. ... The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. ... The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual."
A Constitution Bench of this Court, in Common Cause v. Union of India [Common Cause v.
Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 27Union of India, (2018) 5 SCC 1] , held: (SCC p.
194, para 346) "346. ... Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives."
The strength of the Constitution, therefore, lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage."
(Emphasis supplied)
33. In Amish Devgan Vs. Union of India and Ors. (2021) 1 SCC 1 the Supreme Court again followed the ratio decidendi of K.S.Puttaswamy (supra) and came to hold regarding curtailment of fundamental right and scope of judicial review as under :-
"57. We need not elaborate on this principle in view of the limited controversy involved in the present case, albeit the formulation recognizes the benefit and need for least intrusive measure when it comes to curtailment of fundamental rights and for this purpose the Court can examine the reasonableness of the measures undertaken and whether they are necessary, in that there are no alternatives measures that can achieve the same purpose with a lesser degree of restriction. Secondly, there has to be proper proportionality or balance between the importance of achieving the proper measure and Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 28 social importance of preventing the limitation on the constitutional right."
(Emphasis supplied)
34. Way back in 1962 the Constitution Bench of Supreme Court in Sardar Syedna Taher Saifuddin Saheb Vs. State of Bombay (AIR 1962 SC 853) poignantly held that 'a person is not liable to answer for the verity of his religious views, and he cannot be questioned as to his religious belief, by the State or by any other person'.
35. The Himachal Pradesh High Court in aforesaid judgment expressed its inability to give its stamp of approval to the impugned provisions of the enactment where a citizen was required to disclose his religion and where he was asked to inform the authorities about his intention to change his belief or religion. The provision directing the convertee to give notice in advance to the District Magistrate about changing his religion could not sustain judicial scrutiny. The belief of a citizen regarding the religion is held to be a personal belief of citizen. Interference of State in this personal arena was disapproved. In Para 40 and 41 of the said judgment, High Court held that right to privacy of a citizen and the right to change the belief cannot be taken away under the garb of maintaining 'public order'. If this is permitted, it will open the pandora box and this may lead to conflicts between the rival outfits and groups.
36. We will be failing in our duty if the judgments cited by the learned Advocate General are not considered. There cannot be any quarrel about the limited scope of judicial review available against an enactment or a Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 29 statutory provision. It is equally settled that interim relief against legislation cannot be granted on mere asking. However, there is no rule of thumb that no interim relief can be granted if a strong case is made out showing the enactment ex facie unconstitutional and also by taking into account the balance of convenience, irreparable injury and public interest. Relevant portion of para-13 of the judgment of Health for millions (Supra) on which heavy reliance is placed by learned Advocate General reads as under :-
"13. We have considered the respective arguments and submissions and carefully perused the record. Since the matter is pending adjudication before the High Court, we do not want to express any opinion on the merits and demerits of the writ petitioner's challenge to the constitutional validity of the 2003 Act and the 2004 Rules as amended in 2005 but have no hesitation in holding that the High Court was not at all justified in passing the impugned orders ignoring the well-settled proposition of law that in matters involving challenge to the constitutionality of any legislation enacted by the legislature and the rules framed thereunder the courts should be extremely loath to pass an interim order. At the time of final adjudication, the court can strike down the statute if it is found to be ultra vires the Constitution. Likewise, the rules can be quashed if the same are found to be unconstitutional or ultra vires the provisions of the Act. However, the operation of the statutory provisions cannot be stultified by granting an interim order except when the court is fully convinced that the particular enactment or the rules are ex facie Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 30 unconstitutional and the factors, like balance of convenience, irreparable injury and public interest are in favour of passing an interim order.
(Emphasis supplied)
37. The Constitution of India is suprema lex. A written Constitution pregnant with a bill of rights, like our Constitution recognises certain human rights and fundamental freedoms beyond the clutches of ordinary laws for the simple reason that these rights are not outcome of any statutory law. Indeed, such rights flow from the fountain head of all laws i.e. Constitution of India. Hon'ble Justice Chandrachud in Kesavananda Bharati vs. State of Kerala AIR 1973 SC 1461, set the tone in this regard in following words:-
"What is fundamental in the governance of the country cannot surely be less significant than what is fundamental in the life of an individual. That one is justiciable and the other not may show the intrinsic difficulties in making the latter enforceable through legal process. But that does not bear on their relative importance... The basic object of conferring freedoms on individuals is the ultimate achievement of the ideals set out in Part IV... if the State fails to create conditions in which the fundamental freedoms can be enjoyed by all, freedom of the few will be at the mercy of the many and then all freedoms will vanish."
(Emphasis supplied)
38. In the judgment of Supreme Court in Lata Singh (Supra), Laxmibai Chandaragi B. (Supra) it was recognised that marriage lie Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 31 within a core zone of privacy of a citizen which is inviolable. Right to marry a person of choice is held to be integral to Article 21 of the Constitution. In K. S. Puttaswamy (supra), the nine judges Bench has drawn the curtains on this aspect by holding that the family, marriage, procreation and sexual reorientation are all integral to the dignity of the individual. An individual has a fundamental right to decide the form of expression which includes his right to remain silent. Silence postulates a realm of privacy. The right to remain silent includes the right to decide the preferences on various aspects of life including the faith one will espouse. The Constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world. The H.P. High Court in case of Evangelical Fellowship of India (supra) declared the offending statutory provision as illegal wherein citizen was required to inform the authorities about his wish to change the religion.
39. Considering the aforesaid judgments, in our considered opinion, a strong prima facie case is made out by the petitioners for grant of interim protection in relation to marriage of two adult citizens on their volition and against any coercive action for violation of Section 10 of the Act of
21. Section 10 makes it obligatory for a citizen desiring conversion to give a declaration in this regard to the District Magistrate which in our opinion ex facie, unconstitutional in the teeth of aforesaid judgments of this Court. Thus, till further orders, respondent shall not prosecute the adult citizens if they solemnize marriage on their own volition and shall not take coercive action for violation of Section 10 of Act of 21.
Signature Not Verified Signed by: MANJU Signing time: 11/17/2022 5:03:45 PM 3240. The State shall file its para-wise return within three weeks. Parties shall complete their pleadings at the earliest. Liberty is reserved to the parties to file appropriate application seeking out of turn final hearing of this matter after completion of pleadings.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
manju
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