5th IILS NATIONAL MOOT COURT COMPETITION, 2021 TC_60

TC 60_R

5TH IILS NATIONAL MOOT COURT COMPETITION, 2021

IN THE HONOURABLE SUPREME COURT OF AMPHISSA

Original Writ Jurisdiction

PUBLIC INTEREST LITIGATION

W.P. (CRIMINAL) NO. OF 2021

CASE FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF AMPHISSA

SPECIAL LEAVE PETITION NO. OF 2021

CASE FILED UNDER ARTICLE 136 OF SUPREME COURT OF AMPHISSA

IN THE MATTER OF

DANIEL PETITIONER

V.

STATE OF UPPAM PRADESH RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT

DRAWN AND FILED BY THE COUNCIL FOR THE RESPONDENT

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................. iv

INDEX OF AUTHORITIES .....................................................................................................v
CASES....................................................................................................................................v
STATUTES ......................................................................................................................... vii
OTHER AUTHORITIES ................................................................................................... vii
STATEMENT OF JURISDICTION .................................................................................... viii
SUMMARY OF FACTS ......................................................................................................... ix
STATEMENT OF ISSUES ..................................................................................................... xi
SUMMARY OF ARGUMENTS ............................................................................................ xii
ARGUMENTS ADVANCED ...................................................................................................1
1.THAT THE SPECIAL LEAVE PETITION FILED BY THE PETITIONER IS NOT
MAINTAINABLE .................................................................................................................1
1.1 THAT THE CIRCUMSTANCES OF THE INSTANT CASE ARE NOT OF
“SPECIAL” OR “EXCEPTIONAL” NATURE. ...................................................................1
1.2 THAT ALLOWING A SPECIAL LEAVE IN THE INSTANT CASE WOULD
AMOUNT TO A BREACH OF SELF-IMPOSED RESTRICTIONS OF THIS HON’BLE
COURT ...............................................................................................................................3
2.THAT THE WRIT PETITION FILED BY THE PETITONERS IS NOT
MAINTAINABLE .................................................................................................................6
2.1 THAT THE IMPUGNED ORDINANCE IS NOT IN CONTRAVENTION WITH THE
RIGHT TO PROFESS, PRACTICE AND PROPAGATE RELIGION .................................7
2.2 THAT THE IMPUGNED ORDINANCE IS NOT IN CONTRAVENTION WITH THE
RIGHT TO LIFE AND PERSONAL LIBERTY ................................................................ 10
2.3 THAT THE IMPUGNED ORDINANCE IS NOT IN CONTRAVENTION WITH
RIGHT TO PRIVACY OF INDIVIDUALS ....................................................................... 13
3.THAT THE RELIGIOUS CONVERSION THAT TOOK PLACE WAS VOID .......... 15
PRAYER FOR RELIEF ......................................................................................................... 20

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LIST OF ABBREVIATIONS

& And

¶ Paragraph

AIR All India Reporter

Anr. Another

Art. Article

Cri. Criminal

ed. Edition

Etc. Etcetera

Hon’ble Honourable

i.e. that is

No. Number

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Sec. Section

UOI Union of India

v. Versus

Vol. Volume

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INDEX OF AUTHORITIES
CASES
1. Arun Ghoshe v. State of West Bengal 1970 1 SCC 98 ………………………………. Page 10
2. Arunachalam v. P.S.R Sadhanantham 1979 2 SCC 297 ……………………………… Page 3
3. Balak Ram v. State of U.P., AIR 1974 SC 2165 ……………………………………… Page 5
4. Bengal Chemical & Pharmaceutical Works Ltd. v. Employees AIR 1959 SC 633 …... Page 5
5. Bharat Chaudhary v. State of Bihar & Anr 2003 SCC CRI 1953 …………………… Page 13
6. Bourke v. Beshear, 996 546 ( 2014) ………………………………………………… Page 15
7. Chandra Singh v. State of Rajasthan 2003 6 SCC 545 ……………………………… Page 5
8. Chirag Singhvi. v. State of Rajasthan & Anr. 2017 SCC ONLINE RAJ 3180 ……... Page 7
9. Dawood Khan v. Canada, CCPR/C/87/D/1302/2004, UN Human Rights
Committee (HRC), 10 August 2006 …...……………………………………………. Page 18
10. Dhakeswari Cotton Mills Ltd. v. CIT, AIR 1955 SC 65 …………..…………………. Page 4
11. Dr. Abdul Rahim Undre v. Padma Abdul Rahim Undre 1982 AIR BOM 34 .………. Page 16
12. Gurbaksh Singh Sibbia & Ors. v. State of Punjab 1980 SCC CRI 465 …………….... Page 11
13. Indian Oil Corporation Ltd. v. State of Bihar & Ors 1986 AIR SC 1780…………...... Page 3
14. Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai 2004 3 SCC 214 ….. Page 5
15. Joseph Shine v. Union of India 2018 SCC ONLINE SC 2 …………………………... Page 14
16. K Puttaswamy v. Union of India (2017) 10 SCC 1 …………………………………... Page 14
17. Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd.
2019 SCC 4 376 …………………………………………………………..……….….. Page 4
18. Kunhayammed v. State of Kerala 2000 6 SCC 359 …………………………………... Page 5
19. Kunhayammed v. State of Orissa, AIR 2000 SC 2587 ……………………………..… Page 1
20. Lalita Kumari v. Government of Uttar Pradesh & Ors. 2014 JCC SC 1 1 …………... Page 11
21. Lily Thomas & Ors. v. Union of India & Ors 2000 AIR SC 1650 …………………..... Page 8
22. Love v. Beshear, 989 (W.D. Ky. 2014) ………………………………………………. Page 15
23. M. Chandra v. M. Thangamuthu & Anr 2010 9 SCC 712 ………………………...….. Page 9
24. Mangilal v. State of Madhya Pradesh 1994 SCC (4) 564 ………………………...….. Page 11
25. Mathia alias Joby v. George & Anr. 2016 SCC 7 700………………………………… Page 4
26. Municipal Board, Pratabgarh v. Mahendra Singh Chawla 1982 3 SCC 331 …….….... Page 5
27. N. Suriyakala v. Mohandoss & Ors. 9 SCC 196 ……………………………………… Page 5
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28. Narayan Waktu v. Punjabrao 1958 AIR BOM 296 …………………………..………. Page 17
29. Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law
and Justice AIR 2018 SC 4321; W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016 .…. Page 14
30. Nihal Singh v. State of Punjab, AIR 1965 SC 26 ………………………………..…..…Page 5
31. Nirma Ltd. v. Lurgi Lentges Energietechnik Gmbh (2002) 5 SCC 520 ……….….….. Page 4
32. Obergefell v. Hodger, 576 U.S 644 ……………………………………………..……. Page 15
33. Pritam Singh v. The State AIR 1950 SC 169 ………………………………………… Page 2
34. Priyanshi @ KM Shamreen & Anr. v. State of UP & three Ors.2020 ……………….. Page 16
35. Punjabrao v. Dr. D.P. Meshram and others AIR 1965 SC 1179 …………………...… Page 17
36. Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody 1964 AIR SC 345 …. Page 1
37. Rakheya Bibi v. Anil Kumar 1947 SCC ONLINE CAL 50 ……………..………..…… Page 9
38. Ramesh & Ors. V. State of Rajasthan 2013 SCC ONLINE RAJ 1184 …..………..…. Page 12
39. Ramji Lal Modi v. State of Uttar Pradesh AIR 1967 SC 620 …………………..….… Page 7
40. Ratilal Panachand Gandhi v. State of Bombay 1954 AIR SC 388 ……………..……. Page 8
41. Rev. Stanislaus v. State of Madhya Pradesh AIR 1977 SC 908 ………………..……. Page 8
42. Romesh Thappar v. State Of Madras AIR 1950 SC 124 …………………………...…. Page 9
43. Shafin Jahan v. Ashokan KM & Ors. 2018 SCC 16 408 ……………………............ Page 14
44. Shahan Sha A. & Anr. v. State of Kerala 2010(1) KHC 121 ………………………..... Page 9
45. Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills,
(2008) 13 SCC 323 …….......……………………………………………………… Page 2
46. Shravan & Ors. v. State of Rajasthan & Ors. 2015 SCC ONLINE RAJ 1604 ………. Page 12
47. Skinner v. Skinner (1897) ILR 25 Cal 537 ……………………………………..….... Page 16
48. Smt. Noor Jahan Begum @ Anjali Mishra & Anr. v. State of U.P & Ors.
2015 ALJ 3 322 …………….……………….…………………………………………... Page 16
49. State Bank of India v. Sundara Money 1974 MLJ 1 358 …………………………….. Page 6
50. State of Bombay v. Rusy Mistry AIR 1960 SC 391, AIR …………………………… Page 5
51. State v. Captain Jagjit Singh 1978 SCC 1 118 ………………………………………. Page 12
52. Sujatha v. Jose Augustine 1994 (2) KLT 4 ……………………………………............ Page 8
53. Sukhdev Singh & Ors. v. State of Rajasthan & Anr 2013 RLW RAJ 3 2297 ……….. Page 12
54. Talab Haji Hussain v. Madhukar Puroshottam Mondkar & Ors 1958 AIR SC 376 … Page 13
55. The State through CBI v. Dawood Ibrahim Kaskar & Ors. 1997 AIR SC 2494 …..… Page 12
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56. Union of India & Ors. v. Hafiz Mohd. Said & Delhi & Ors. AIR 1975 Delhi 77 …….. Page 6
STATUTES
1. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion
Ordinance (2020). UP Ordinance No. 21 of 2020 ……………...……….……..…...… Page 2
2. The Indian Penal Code (1860). Act No. 45 of 1860 ………………………....………... Page 2
3. The Constitution of India [India], 26 January 1950 …………...………….…..……..... Page 7
4. Rajasthan Freedom of Religion Act (2006), Act No.12 of 2006 ……………...….....… Page 7
5. The Special Marriage Act, 1954. Act No.43 of 1954 ………………………........…… Page 15
BOOKS
1. Jain, M. P. (1962). Indian constitutional law. Bombay: N.M. Tripathi ……….……… Page 1
2. Mulla's Principles of Mahomedan Law (19th ed.) by M. Hidayatullah,
Arshad Hidayatullah …..………………………………………………..…………… Page 16
OTHER AUTHORITIES
1. India. Law Commission of India, Report No.235 on Conversion/Reconversion
to another religion ………………..……………………………………………..….. Page 8
2. UN General Assembly, International Covenant on Civil and Political Rights,
16 December 1966, United Nations, Treaty Series, vol. 999 ...……………………. Page 18
3. UN General Assembly, Declaration on the Elimination of All Forms of
Intolerance and of Discrimination ......…………………………………………….. Page 28
4. UN Human Rights Council, Report of the Special Rapporteur on freedom
of religion or belief, 23 December 2015, A/HRC/31/18 ………..…………………. Page 19
5. Based on Religion or Belief, 25 November 1981, A/RES/36/55 …………………. Page 20

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STATEMENT OF JURISDICTION

The Petitioner approached the Hon’ble Supreme Court under Article 136 of the Constitution of
Amphissa by filing a petition for Special Leave to appeal being aggrieved by the order passed by
the Magistrate. The petition is currently pending before this Hon’ble court. The petitioner has also
filed a writ petition as per Article 32 of the Constitution of Amphissa challenging the
constitutionality of the Uppam Pradesh Prohibition of Unlawful Conversion of Religion
Ordinance, 2020. The respondent humbly submits to the jurisdiction of this Hon’ble Court.
 Article 136 in the Constitution of Amphissa

Special leave to appeal by the Supreme Court.—

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
India.

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces.

 Article 32 in the Constitution of Amphissa

Remedies for enforcement of rights conferred by this Part.—

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and
(2), Parliament may by law empower any other court to exercise within the local limits of
its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

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SUMMARY OF FACTS
1. The material case arises out of two petitions filed by the petitioners: first, A Special Leave
Petition (SLP) filed by Daniel and Ors. aggrieved by the order of the Magistrate, who issued
a non-bailable warrant against the petitioners: second, A writ petition filed by the petitioners
challenging the constitutionality of the Uppam Pradesh Prohibition of Unlawful Religious
Conversion Ordinance, 2020

I. BACKGROUND

2. The Republic of Amphissa is located in the South Asian Region of Asia. After being under a
British colony for 150 years, Republic of Amphissa is now an independent democratic
country. Its constitution has adopted the parliamentary system and believes in secularism.
The country has diversified religion with Hinduism, Buddhism, Christianity, Islam, Jainism
and Sikhism as the major religions followedby the people, characterized by a diversity of
religious beliefs and practices. Majority of the people follow Hinduism. The Constitution of
Republic of Amphissa declares right to freedom of religion as a fundamental right and has
Amphissian Penal Code (APC) to ensure the maintenance of law and order in the Republic
of Amphissa, which deals with various offences prescribing the punishments for the same,
apart from other laws of the nation.
3. Because of its religious diversity, The danger of communal conflicts is ever-present and is
unlikely to wane anytime. In March 2019, certain newspapers published a report about ‘Love
Jihad’ which is an activity of certain organizations under which young Muslim men and boys
in the state target young girls belonging to non- Muslim communities for conversion to Islam
by feigning love.
I. THE ORDINANCE
4. The Uppam Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020,
unofficially referred to as the 'love jihad law' by most of the media, is a law enacted by the
Government of Uppam Pradesh, Amphissa, cleared by the state cabinet and approved by the
governor. The Uppam Pradesh ordinance makes conversion non-bailable with up to 10 years
of jail time.
5. There has been much furore over the Uppam Pradesh Prohibition of Unlawful Conversion of
Religion Ordinance 2020. Most of it has been around the law being a violation of an

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individual’s right to marry a person of one’s choice and being restrictive of the fundamental
right to life, autonomy and privacy and right to equality based on religion.
II. SUMMARY OF EVENTS
6. In December 2020, Prabha, and Daniel, a young couple residing in the Lunnow, the capital
of Uppam Pradesh, expressed their willingness to marry each other. Prabha, was a Jain by
religion and Daniel belonged to a family practising Islamic faith. Belonging to different
religions, they wished to be wedded under the Special Marriage Act 1956. This marriage
was severely objected to by Prabha’s family who did not approve of inter-faith marriages.
But Daniel’s family approved of the marriageand welcomed it. Prabha out of respect towards
Daniel’s family embraced Islam by getting converted. They started living in a separate
apartment in Jallabad post-marriage. In times of COVID, she went to visit her in-laws’ house
in Lunnow and came to know that her brother fell off the stairs and she wanted to meet him
but the in-laws out of apprehension that Prabha might contract the infection, did not allow
her to travel. She started to feel trapped in the house after a period of two months and called
up her parents. Her family viewed it as a one of the cases of ‘Love Jihad’ that had been so
extensively reported in the state recently. Thus, her family immediately filed an FIR at
Rainbow Police Station against Daniel’s family under Section 498A APC, section 340 of
APC as well as provisions under the Uppam Pradesh Anti-Conversion Act. Daniel’s family
members were arrested on 20thMay, 2021 after the information was sent to the police station
at Bajna.
III. THE RESULTANT LITIGATION
7. The Magistrate denied bail to Daniel’s family and issued a non-bailable warrant against
Daniel under section 498A. Daniel and his family preferred a Special Leave Petition before
the Supreme Court and also filed a writ petition challenging the validity of Uppam Pradesh
Prohibition of Unlawful Conversion of Religion Act, 2020.

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STATEMENT OF ISSUES

ISSUE-I

THAT THE SPECIAL LEAVE PETITION FILED BY THE PETITIONER IS

NOT MAINTAINABLE

ISSUE-II

THAT THE WRIT PETITION FILED BY THE PETITONERS IS NOT

MAINTAINABLE

ISSUE-III

THAT THE RELIGIOUS CONVERSION THAT TOOK PLACE WAS VOID

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SUMMARY OF ARGUMENTS

I- THAT THE SPECIAL LEAVE PETITION FILED BY THE PETITIONER IS NOT

MAINTAINABLE

It is humbly contended before this Hon’ble Court that the petitioners lack locus standi for
the Special Leave Petiton (SLP) filed under Article 136 of the Constitution of India. It is
submitted that the facts and circumstances of the case are not exceptional and there is no
grave violation of law or miscarriage of justice that warrants the admission of the SLP. The
counsels humbly content that this Hon’ble Court has certain self-imposed restrictions
which have been settled in a catena of cases and that the Court even in this case uphold
case to prevent prospects of this power under 136 from being construed as similar to that
of powers of any Court of appeal.

II- THAT THE WRIT PETITION FILED BY THE PETITONERS IS NOT

MAINTAINABLE

It is humbly submitted that the writ petiton filed by the petitioners under Article 32 of the
Constitution of India is not maintainable. The counsels submit that the impugned ordinance
is not in violation of the fundamental rights enshrined under the constitution. And that;
first, the impugned ordinance is not in violation of the right to practice, profess or propagate
religion; second, the impugned ordinance is not in violation of the right to life and personal
liberty; third, the impugned ordinance is not in violation of the right to privacy.

III- THAT THE RELIGIOUS CONVERSION THAT TOOK PLACE WAS VOID

It is humbly contended that the religious conversion was void as it did not arise out of the
volition of the individual but for the (i) sake of marriage (ii) the fear psychosis. Prabha in
the instant case converted to Islam is order to enhance chances of her in-laws accepting the
marriage and hence, the conversion cannot be deemed to be valid.

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ARGUMENTS ADVANCED
A) THAT THE SPECIAL LEAVE PETITION FILED BY THE PETITIONER IS
NOT MAINTAINABLE

1. On a percussive note, it is submitted that the discretionary jurisdiction to allow a Special Leave
Petition (hereon: SLP) is ascribed to Article 136 1 of the Constitution which confers wide
residuary powers to the Supreme Court to grant special leave to appeal against judgment,
decree, determination, sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India2. It is hereby contended by the counsel for the respondents 1.1)
That the circumstances of the instant case are not of “special” or “exceptional” nature 1.2) That
allowing a special leave in the instant case would amount to a breach of self-imposed
restrictions of this Hon’ble Court

1.1 THAT THE CIRCUMSTANCES OF THE INSTANT CASE ARE NOT OF “SPECIAL”
OR “EXCEPTIONAL” NATURE.

2. It is to be duly noted that the powers exercised by this Hon’ble court under Art. 136 are by
nature residuary and plenary in the sense that its scope is not saliently demarcated under the
said article. In the case of Kunhayammed v. State of Orissa3, this Hon’ble Court commented
on its powers under Art. 136 as “….an untrammelled reservoir of power incapable of being
confined to definitional bounds; the discretion conferred on the Supreme Court being subjected
to only one limitation, that is, the wisdom and good sense of justice of the Judges”. However,
in the case of Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody4 decided by a
learned bench of this Hon’ble Court consisting of J. Sarkar and J. Shah, it was stated that-
“Exercise of the jurisdiction of the Court under Article 136 of the Constitution is
discretionary: it is exercised sparingly and in exceptional cases, when a substantial question of
law falls to be determined or where it appears to the Court that interference by this Court is
necessary to remedy serious injustice. A party who approaches this Court invoking the exercise

1
Article 226, Constitution of India.
2
Jain, M. P. (1962). Indian constitutional law. Bombay: N.M. Tripathi.
3
Kunhayammed v. State of Orissa, AIR 2000 SC 2587.
4
Rajabhai Abdul Rehman Munshi v. Vasudev Dhanjibhai Mody 1964 AIR SC 345

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of this overriding discretion of the Court must come with clean hands. If there appears on his
part any attempt to overreach or mislead the Court by false or untrue statements or by
withholding true information which would have a bearing on the question of exercise of the
discretion, the Court would be justified in refusing to exercise the discretion or if the discretion
has been exercised in revoking the leave to appeal granted even at the time of hearing of the
appeal.”
3. In the case of Pritam Singh v. The State5, the Court shed light on its powers under Art. 136 and
clarified that “The only uniform standard which in our opinion can be laid down in the
circumstances is that Court should grant special leave to appeal in those cases where special
circumstances are shown to exist.” It was further emphasized that “…. this Court will not grant
special leave, unless it is shown that exceptional and special circumstances exist, that
substantial and grave injustice has been done and that the case in question presents features of
sufficient gravity to warrant a review of the decision appealed against.”
4. It is humbly submitted that the instant case is no special or exceptional circumstance but a
routine case of unlawful religious conversion if not forced, that the State of Uttam Pradesh has
witnessed regularly which led to the promulgation of the Uppam Pradesh Prohibition of
Unlawful Conversion of Religion Ordinance, 20206 in the first place. The state has regularly
witnessed young Muslim men and boys luring young girls from non-Muslim communities by
feigning love7. The petitioner- one Mr. Daniel has been arrested as per the provisions Section
498A and 340 of Amphissa Penal Code, 18608 (hereon: APC) along with Section 3 of the
Uppam Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 read with
Section 5, 6 and 7 according to the procedure established Section 4 of the same ordinance 9.
Hence, it would be needless to mention that the arrest was neither arbitrary nor unlawful and
in obeyance with the procedure established by law.
5. In a leading judgement in Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills10,
the apex court held that “Circumspection and circumscription must…induce the Court to

5
Pritam Singh v. The State AIR 1950 SC 169.
6
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance (2020). UP Ordinance No. 21 of 2020.
7
Fact Sheet, ¶ 23.
8
The Indian Penal Code (1860). Act No. 45 of 1860.
9
Fact Sheet, ¶ 25.
10
Shivanand Gaurishankar Baswanti v. Laxmi Vishnu Textile Mills, (2008) 13 SCC 323.
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interfere with the decision under challenge only if the extraordinary flaws or grave injustice or
other recognised grounds are made out”. It was also stated that only after a matter is registered
as an appeal, the court will take all the points that it would naturally hear on an appeal and
decide them on merits and not while the petition is admitted11.

6. If read in consonance with the instant case, it is clearly evident that none of the aforementioned
grounds are applicable or perusal in order to establish grounds for allowing an appeal under
Art. 136. The Magistrate denied bail to Daniel’s family and issued a non-bailable warrant
against Daniel under Section 498A of the APC 12. The denial of bail or issue of a non-bailable
warrant shall in no way amount to extraordinary flaws or grave injustice or other recognised
grounds considering that the Court has also entertained and duly considered the application as
per procedure established under Section 340 of the APC. Therefore, it is submitted that a
Special Leave Petition challenging the order of the Magistrate would not be maintainable.

1.2 THAT ALLOWING A SPECIAL LEAVE IN THE INSTANT CASE WOULD

AMOUNT TO A BREACH OF SELF-IMPOSED RESTRICTIONS OF THIS HON’BLE
COURT
7. In the case of Indian Oil Corporation Ltd. v. State of Bihar & Ors13., the Court said-“ It would
be clear from the provisions of Article 136 of the Constitution of India that it is a discretionary
power of the Supreme Court whether to grant such Special Leave or not. There is no limitation
specified in the Article itself but Supreme Court has imposed upon itself certain limitations
and/or restrictions on such exercise of discretion. Supreme Court exercises this power
sparingly only in those cases where some substantial question of law general or public
importance is involved or there is manifest injustice resulting from the impugned order or
judgment”.
8. In a similar case in Arunachalam v. P.S.R Sadhanantham & Anr14., Chinnappa Reddy J.
speaking on behalf of the Court held that- “The power under Article 136 is plenary in the sense
that there are no words in Article 136 itself qualifying that power. But, the very nature of the

11
Ibid.
12
Fact Sheet, ¶ 26.
13
Indian Oil Corporation Ltd. v. State of Bihar & Ors 1986 AIR SC 1780, para. 39.
14
Arunachalam v. P.S.R Sadhanantham 1979 2 SCC 297.
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power has led the Court to set limits to itself within which to exercise such power. It is now
the well-established practice of this Court to permit the invocation of the power under Article
136 only in very exceptional circumstances, as when a question of law of general public
importance arises or a decision shocks the conscience of the Court”. It has already been
established that the instant case is no special or exceptional circumstance, hence, it is prayed
to apply the rule as held in Dhakeswari Cotton Mills Ltd. v. CIT15,” It being an exceptional
and overridingpower, naturally it has to be exercised sparingly and with caution and only in
special and extraordinary situations…..What, however, the Court has stated is that it being a
special power it is to be exercised only in those cases where special circumstances are shown
to exist”.

9. It is understood that the powers of this Hon’ble Court under Art. 136 are discretionary,
however, it is humbly submitted in wider public interest that it be sparingly used considering
the heavy backlog of cases that the Court faces and also consider whether the party has
exhausted alternative remedies available its disposal. In the case of Mathai alias Joby v.
George & Anr. 16, this Court observed that special leave petitions were being filed by the
litigants against almost every kind of order resulting in piling up of huge arrears and converting
this Court into an ordinary appellate court which was never the intention of the Framers of the
Constitution when they enacted Article 136. In the instant case, it would be more suitable if
the party approached the High Court in an appeal as per procedure prior to approaching this
Hon’ble Court to grant a Special leave to appeal considering that the Court has imposed on
itself a restriction that before invoking the jurisdiction of the Court under Art. 136, the
aggrieved party must exhaust any remedy which may be available under the law before the
lower appellate authority or the High Court17. It is not only contended that the petitioner lacks
the locus standi to file the petition but also that it does not deserve to be dealt with by the apex
court18.

15
Dhakeswari Cotton Mills Ltd. v. CIT, AIR 1955 SC 65.
16
Mathia alias Joby v. George & Anr. 2016 SCC 7 700.
17
Nirma Ltd. v. Lurgi Lentges Energietechnik Gmbh (2002) 5 SCC 520.
18
Khoday Distilleries Ltd. v. Mahadeshwara Sahakara Sakkare Karkhane Ltd. 2019 SCC 4 376, para. 40
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10. It is submitted that in the instant case, if the petitioners were not satisfied with the order of the
learned Magistrate, they could have approached the Hon’ble High Court of Uppam Pradesh in
an appeal as an alternative remedy instead of approaching this Hon’ble Court considering the
ordinary nature of the circumstances of this case are settled. It is to be duly noted that an SLP
under Art. 136 cannot be treated as an ordinary appeal. This has been settled in the case of N.
Suriyakala v. Mohandoss & Ors. 19, it was held by the learned bench that “Article 136 of the
Constitution is not a regular forum of appeal at all. It is a residual provision which enables the
Supreme Court to interfere with the judgment or order of any court or tribunal in India in its
discretion.”. The bench further clarified that the words-“in its discretion” used in Art. 136 does
not confer a right of appeal on any party but only vests a discretion in the Supreme Court to
interfere in exceptional cases20. In the case of Municipal Board Pratapgarh v. Mahendra Singh
Chawla21, it was observed that the Court is not bound to set aside an order even if it was in
conformity with law since the power under Article 136 is discretionary.

11. It is hereby submitted that filing a SLP under Art. 136 seeking grant of leave to appeal in a
criminal case given the nature of circumstances is not identical to that of the powers of this
Hon’ble Court under Article 134(1)(c) to act as an ordinary court of criminal appeal to which
every High Court judgment in a criminal case can be brought up for scrutiny of its correctness.
It is also contended that the Court does not interfere with concurrent findings “unless the
findings are vitiated by errors of law, or the conclusions reached by the courts below are so
patently opposed to well-established principles as to amount to miscarriage of justice,” or
where the interest of justice so requires 22. In another landmark judgment in Jamshed Hormusji
Wadia v. Board of Trustees, Port of Mumbai23, it was held that “When no law confers a
statutory right to appeal on a party, Article 136 cannot be called in aid to spell out such a right.
The Supreme Court would not under Article 136 constitute itself into a tribunal or court just
settling disputes and reduce itself to a mere court of error.”

19
N. Suriyakala v. Mohandoss & Ors. 9 SCC 196.
20
Bengal Chemical & Pharmaceutical Works Ltd. v. Employees AIR 1959 SC 633 ¶Kunhayammed v. State of Kerala
2000 6 SCC 359 ¶State of Bombay v. Rusy Mistry AIR 1960 SC 391, AIR at p. 395.
21
Municipal Board, Pratabgarh v. Mahendra Singh Chawla 1982 3 SCC 331 ¶Chandra Singh v. State of Rajasthan
2003 6 SCC 545.
22
Nihal Singh v. State of Punjab, AIR 1965 SC 26 ¶Balak Ram v. State of U.P., AIR 1974 SC 2165.
23
Jamshed Hormusji Wadia v. Board of Trustees, Port of Mumbai 2004 3 SCC 214, para 33.

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12. Further, it was laid down in the case of State Bank of India v. Sundara Money24 “A substantial
question of law of general importance is a sine qua non to certify fitness for hearing by the
Supreme Court. Nay, more; the question, however important and substantial, must be of such
pervasive import and deep significance that in the High Court’s judgment it
imperatively needs to be settled at the national level by the highest Bench”. The stress on the
expression “needs” has been clarified by the Delhi High Court in the case of Union of India &
Ors. V. Hafiz Mohd. Said & Ors. 25 “… Further the word ‘needs’ suggests that there has to be
a necessity for a decision by the Supreme Court on the question, and such a necessity can be
said to exist when, for instance, two views are possible regarding the question and High Court
takes one of the said views. Such a necessity can also be said to exist when a different view has
been expressed by another High Court.” It is clearly observed in the instant case that the (i)
The petitioner has not exhausted the alternative remedy of approaching the High Court leaving
no question regarding an deviating view of the High Court (ii) There is no pervasive or deep
significance in the petitioner’s acquittal (iii) The petitioner lacks the locus standi. Therefore, it
is the submitted that the SLP is not maintainable and warrants to be dismissed in limine.

B) THAT THE WRIT PETITION FILED BY THE PETITONERS IS NOT

MAINTAINABLE

13. It is duly submitted that the writ jurisdiction of this Hon’ble Court flows from Article 32
(hereon: Art. 32) of the Constitution of India 26 which confers wide powers enabling the Court
to issue writs, directions, orders for the enforcement of fundamental or legal rights. Article
3227 which is a fundamental right in itself guarantees a right to move the Supreme Court by
appropriate proceedings to enforce fundamental rights by the power to issue writes conferred
by the same provision. It is pertinent to note that the power conferred to this Hon’ble Court by
the Article to issue directions or orders or writs is discretionary in nature. The petitioners have

24
State Bank of India v. Sundara Money 1974 MLJ 1 358.
25
Union of India & Ors. v. Hafiz Mohd. Said & Delhi & Ors. AIR 1975 Delhi 77.
26
The Constitution of India [India], 26 January 1950.
27
Article 32, Constitution of India.

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filed a writ petition before this Hon’ble Court under the requisite provisions contesting the
constitutional validity of the impugned Uppam Pradesh Prohibition of Unlawful Conversion
of Religion Ordinance, 2020. It is hereby submitted that the petition is not maintainable on two
grounds, namely- 2.1) That the impugned ordinance is not in contravention with the right to
profess, practice and propagate religion 2.2) That the impugned ordinance is not in
contravention with the right to life and personal liberty 2.3) That the impugned ordinance is
not in contravention with right to privacy of individuals; all guaranteed by Part-III of the
Constitution of India.

2.1 THAT THE IMPUGNED ORDINANCE IS NOT IN CONTRAVENTION WITH THE

RIGHT TO PROFESS, PRACTICE AND PROPAGATE RELIGION

14. It is humbly submitted to this Hon’ble Court that the Uppam Pradesh Prohibition of Unlawful
Conversion of Religion Ordinance, 2020 is not ultra vires the freedom to profess, practice or
propagate religion guaranteed under Article 2528 of the Indian Constitution. It is submitted that
the freedom and right guaranteed under Art. 25 is not an absolute right and is subject to public
order, morality and health in addition to other provisions 29 mentioned under this part. In the
instant case, the impugned statute does not bar or prohibit anyone from exercising their rights
as far as it is consistent with threstrictions that it is subject to, which in this case is forceful
conversion.
15. In the case of Chirag Singhvi v. State of Rajasthan & Anr.30, the learned bench of the Rajasthan
High Court came across a similar case where the Rajasthan Dharma Swatantriya Act 31 was in
question. The Hon’ble Court was in agreement with the submissions made on the grounds that
emphasised the problem of forcible conversion which was on the rise where teenagers were
forcibly converted only for the purpose of solemnizing marriage and that the impugned Act
was assented only in exercise of the restrictions stated under Art. 25 in furtherance of
maintaining public order.

28
INDIA CONST. art 25.
29
Ramji Lal Modi v. State of Uttar Pradesh AIR 1967 SC 620.
30
Chirag Singhvi. v. State of Rajasthan & Anr. 2017 SCC ONLINE RAJ 3180, para. 221.
31
Rajasthan Freedom of Religion Act (2006), Act No.12 of 2006.

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16. In that case of Rev. Stainislaus v. State of Madhya Pradesh 32, it was held that-“Propagating the
religion connotes the right to communicate the religious beliefs to others by expounding the
tenets of that religion. Of course, in the name of propagation, no one has a right to convert a
person to another religion under pressure or inducement.”33 Art.2634 gives effect to the
concomitant right of the freedom to manage religious affairs and this right is again subject to
public order, morality and health. Articles 25 and 26 undoubtedly extend to rituals also and not
confined to doctrine. It is not settled that the freedom of conscience and the right to profess a
religion implies freedom to change the religion as well 35. In the above case, the bench while
referring to the judgment in Ratilal Panachand Gandhi v. State of Bombay36, commented that-
“This Court has given the correct meaning of the article, and we find no justification for the
view that it grants a fundamental right to convert persons to one's own religion”

17. The change from one religion to another is primarily the consequence of one’s conviction that
the religion in which he was born into has not measured up to his expectations – spiritual or
rational. It was held in the case of Sujatha v. Jose Augustine 37 (II (1994) Divorce &
Matrimonial Cases 442) that to be a Christian, one must truly profess the Christian faith and
the fact that one has undergone the ceremony of baptism may not by itself be sufficient to hold
that he or she has become a Christian. Hence, in the instant case it can be settled that Prabha
did not marry out her own whim or dissatisfaction with her original religion but out of an intent
to please Daniel’s family so that they accepted their marriage better38. In the case of Lily

Thomas & Ors. v. Union of India & Ors.39, the bench while speaking on the sanctity of religion
and its tenets said that “If the person feigns to have adopted another religion just for some
worldly gain or benefit, it would be religious bigotry.”

32
Rev. Stanislaus v. State of Madhya Pradesh AIR 1977 SC 908.
33
India. Law Commission of India, Report No.235 on Conversion/Reconversion to another religion, p.6
34
INDIA CONST. art. 26.
35
Ibid.
36
Ratilal Panachand Gandhi v. State of Bombay 1954 AIR SC 388.
37
Sujatha v. Jose Augustine 1994 (2) KLT 4.
38
Fact Sheet, ¶ 24-25.
39
Lily Thomas & Ors. v. Union of India & Ors 2000 AIR SC 1650.
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18. It is strongly contended that the impugned ordinance was necessary in order to prevent such
forced conversions happening around the State of Uppam Pradesh and that it would not be
ultra vires Art. 25. The counsels would like to place reliance on the single-judge judgment in
the case of Shahan Sha A. & Anr. v. State of Kerala40 where the Court recognised the existence
of forcible conversion conducted by radical groups operating in various parts of Kerala
influencing young girls from other communities and forcibly converting them to Islamic faith.
The same is prayed to be recognised in the instant case as well given the situation and
circumstances recorded by the fact sheet 41.

19. In the case of Rakheya Bibi v. Anil Kumar42, the Calcutta High Court observed that it is open
to the Court to go into the question whether the conversion was a bona fide one or a mere
pretence. In the case of M. Chandra v. M. Thangamuthu & Anr. 43, the Court held that “it is a
settled principle of law that to prove a conversion from one religion to another, two elements
need to be satisfied. First, there has to be a conversion and second, acceptance into the
community to which the person converted.” It is hereby submitted that the second element is
missing in the instant case.

20. The counsels find it pertinent to be noted that the impugned ordinance clearly provides for the
maintenance of public order for, if forcible conversion had not been prohibited, that would
have created public disorder in the State. The expression “public order” is of wide connotation.
It must have the connotation which it is meant to provide as the very first Entry in List II. It
has been held by this Court in Romesh Thappar v. State Of Madras44 that “public order” is an
expression of wide connotation and signifies state of tranquillity which prevails among the
members of a political society as a result of internal regulations enforced by the Government
which they have established.

40
Shahan Sha A. & Anr. v. State of Kerala 2010(1) KHC 121.
41
Fact Sheet, ¶ 23.
42
Rakheya Bibi v. Anil Kumar 1947 SCC ONLINE CAL 50.
43
M. Chandra v. M. Thangamuthu & Anr 2010 9 SCC 712.
44
Romesh Thappar v. State Of Madras AIR 1950 SC 124.

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21. It is submitted that forcible conversions contribute to public disorder and mass disturbances.
45
In Arun Ghoshe v. State of West Bengal where it has been held that if a thing disturbs the
current of the life of the community, and does not merely affect an individual, it would amount
to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g
on the ground that someone has been “forcibly” converted to another religion, it would, in all
probability, give rise to an apprehension of a breach of the public order, affecting the
community at large.

2.2 THAT THE IMPUGNED ORDINANCE IS NOT IN CONTRAVENTION WITH THE

RIGHT TO LIFE AND PERSONAL LIBERTY

22. On a precursive note, it is hereby understood by the counsels for the respondents that Article
2146 provides for protection of personal life and liberty except according to the procedure
established by law and that Article 22 47 to protects against arrest and detention. However, it is
argued that a procedure established by law has been followed in the instant case. That, the
accused have been arrested for the offence under 498A48 of the APC according to the procedure
prescribed under Section 340 along with Section 3 read with 4, 5, 6 & 7 of the ordinance. It is
further pertinent to note that the accused have also been provided a speedy trial and that in the
due course of which a non-bailable warrant has been issued against the accused in the due
course of the same49.

23. It is hereby submitted that if the husband or a relative of the husband of a woman subjects the
woman to cruelty, such an offence is cognizable as well as non-bailable as per the
understanding of Section 498A is concerned. By placing reliance on the judgment in the case
of State through CBI v. Dawood Ibrahim Kaskar & Ors50., where the Court held that a non-
bailable warrant can be issued even if a charge-sheet has been filed provided that provided the
person against whom the warrants are required to be issued is an escaped convict, proclaimed

45
Arun Ghoshe v. State of West Bengal 1970 1 SCC 98
46
INDIA CONST. art 21.
47
INDIA CONST. art. 22.
48
Section 498A, Amphissa Penal Code.
49
Fact Sheet, ¶ 26.
50
The State through CBI v. Dawood Ibrahim Kaskar & Ors. 1997 AIR SC 2494.
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offender or is a person accused of a non-bailable offence and is evading arrest. In such type of
cases, the court can even grant police custody for the purpose of investigation and
interrogation. It is pertinent to note that factsheet reflected on the plethora of cases where
youths forced girls belonging to other communities to convert by feigning love 51 and
considering the volatility of the case, in the best interest of the victim Prabha and her family,
the accused as well the community at large, it is important that accused be kept in custody to
ensure a fair trial and cut loose any ends which are apprehended. It may be noted that the
warrants for arrest are not necessary in case of a cognizable offence before charge or even after
charge52.

24. In Mangilal v. State of Madhya Pradesh 53, this Hon’ble Court reiterated the conditions that
need to be satisfied for the issuance of a non-bailable warrant- (i) If it is reasonable to believe
that the person will not voluntarily appear in court; (ii)The police authorities are unable to find
the person to serve him with a summon; or (iii) It is considered that the person could harm
someone if not placed into custody immediately. It would be reasonable to apprehend harm
from Daniel & his family on Prabha considering it is precedent that they have been indifferent
to her repeated plea of wanting to meet her bed-ridden brother by wrongfully confining her.

25. It is pertinent to note that the accused are not only alleged of cruelty towards Prabha but also
under the impugned ordinance for forced conversion which is also a non-bailable offence. It
will not be wrong in submitting that the conversion and the confinement at Daniel’s home in
Lunnow is no coincidence and completely premeditated. In the Gurbaksh Singh Sibbia & Ors
v. State of Punjab54 it was observed that-“The nature and seriousness of the proposed charges,
the context of the events likely to lead to the making of the charges, a reasonable possibility of
the applicant's presence not being secured at the trial, a reasonable apprehension that witnesses
will be tampered with and “the larger interests of the public or the State” are some of the
considerations which the court has to keep in mind while deciding an application for

51
Fact Sheet, ¶ 23.
52
Lalita Kumari v. Government of Uttar Pradesh & Ors. 2014 JCC SC 1 1.
53
Mangilal v. State of Madhya Pradesh 1994 SCC (4) 564.
54
Gurbaksh Singh Sibbia & Ors. v. State of Punjab 1980 SCC CRI 465.

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anticipatory bail.” Here, the ‘larger interests of the state’ are extremely important to consider,
considering the fact that this will set precedent to prospective offenders lurking within the state.

26. In the case of Sukhdev Singh & Ors. v. State of Rajasthan & Anr 55, it was observed by the
learned bench of the Rajasthan HC that “…just as liberty is precious for an individual so is the
interest of the society in maintaining law and order. Both are extremely important for the
survival of a civilized society. Sometimes in the larger interest of the Public and the State it
becomes absolutely imperative to curtail freedom of an individual for a certain period, only
then the non-bailable warrants should be issued.” Just as liberty is precious for an individual
so is the interest of the society in maintaining law and order. Both are extremely important for
the survival of a civilised society56.

27. It is hereby contended that the seriousness of the offence is extremely material for
consideration in the instant case. The counsels place reliance on the judgment of this Hon’ble
Court in State v. Captain Jagjit Singh57 where the Court set side an order of the High Court
which made an error in granting bail to a person in a non-bailable case- “It (the High Court)
should then have taken into account the various considerations, such as nature and seriousness
of the offence, the character of the evidence, circumstances which are peculiar to the accused,
a reasonable possibility of the presence of the accused not being secured at the trial, reasonable
apprehension of witnesses being tampered with, the larger interests of the public or the State,
and similar other considerations, which arise when a Court is asked for bail in a non-bailable
offence. It is true that under Section 498 of the Code of Criminal Procedure, the powers of the
High Court in the matter of granting bail are very wide; even so where the offence is non-
bailable, various considerations such as those indicated above have to be taken into account
before bail is granted, in a non-bailable offence.”
28. Similarly, in Bharat Chaudhary v. State of Bihar & Anr. 58 is was observed that ” The gravity
of the offence is an important factor to be taken into consideration while granting such

55
Sukhdev Singh & Ors. v. State of Rajasthan & Anr 2013 RLW RAJ 3 2297 ¶ Shravan & Ors. v. State of Rajasthan
& Ors. 2015 SCC ONLINE RAJ 1604.
56
Ramesh & Ors. V. State of Rajasthan 2013 SCC ONLINE RAJ 1184.
57
State v. Captain Jagjit Singh 1978 SCC 1 118.
58
Bharat Chaudhary v. State of Bihar & Anr 2003 SCC CRI 1953.
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anticipatory bail so also the need for custodial interrogation, but these are the only factors that
must be borne in mind by the Courts concerned while entertaining a petition for grant of
anticipatory bail…..”. It can be submitted that the learned Magistrate took cognisance of the
seriousness of the circumstances before denying bail and issuing a non-bailable warrant against
the accused persons.

29. It is submitted that in the instant case, the reasons for issuing a non-bailable warrant is not just
for the sake of ensuring the presence of the accused during trial but also to ensure the fairness
of such a ongoing trial. It was laid down in Talab Haji Hussain v. Madhukar Puroshottam
Mondkar & Ors59. that-“ it is obvious that the primary object of criminal procedure is to ensure
a fair trial of accused persons. Every criminal trial begins with the presumption of innocence
in favour of the accused; and provisions of the Code are so framed that a criminal trial should
begin with and be throughout governed by this essential presumption; but a fair trial has
naturally two objects in view; it must be fair to the accused and must also be fair to the
prosecution. The test of fairness in a criminal trial must be judged from this dual point of view.”

30. It is hereby submitted to this Hon’ble Court that in the instance case, the issuance of such a
non-bailable warrant by the Magistrate or the impugned ordinance will not lead in
encroachment of the fundamental rights of the accused to personal life and liberty since,-(i) it
is subject to the procedure established by law (ii) personal liberty has to conceived in
consonance with ‘larger interests of the society’ (iii) it is necessary to ensure that the trial fair
for the accused as well as the prosecution. Hence, it is submitted that the writ petition is not
maintainable.
2.3 THAT THE IMPUGNED ORDINANCE IS NOT IN CONTRAVENTION WITH
RIGHT TO PRIVACY OF INDIVIDUALS

31. It is hereby submitted by the counsels that there is an apprehension of misunderstanding of the
petitioner with regard to term ‘personal liberty’ as discussed by the Supreme Court in cases of

59
Talab Haji Hussain v. Madhukar Puroshottam Mondkar & Ors 1958 AIR SC 376.
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K Puttaswamy v. Union of India60, Navtej Johar v. Union of India61, Joseph Shine v. Union of
India62 as well as Shafin Jahan v. Ashokan KM63 (Hadiya case). It is pertinent to note that the
above judgments dealt with separate issues and not issues of forced conversion. The underlying
factor is that no fundamental right is absolute. The reliance in Shafin Jahan case is
misconceived as right to change faith is not an issue in hand but the issue is to create terror in
the mind of a person to get them converted. Fear psychosis or fraud were not issues that fell
for consideration in the Hadiya judgment and hence, perusal of such a case in the instant case
is beyond comprehension. The same has also been held by the Allahabad HC in a recent PIL
questioning the constitutionality of the UP ordinance.

32. It shall be clarified that the counsels shall not delve into unfounded arguments on ‘community
thinking’. It is hereby submitted that once two adult individuals agree into wedlock but if there
is fear psychosis in the community then, it is the ‘community interest’ as compared to
‘community thinking’. The community interest is at a much higher pedestal than agreement of
two adult individuals to enter into a wedlock. The community interest is synonymous with
social interest which is equivalent to public interest. Under the present circumstances, thinking
of family or community is not the foundation but the interest of the community and interest to
keep the family safe and as a consequence the entire social fabric in a balanced position is the
reason why the consent of two adult individuals have to be regulated. It is humbly submitted
that considering that there was an impending need for a legislation in the State of Uppam
Pradesh to curb the alarming numbers of forced conversions, the impugned ordinance sought
to cure the mischief/ lacunae.

33. It is argued that so far as the breach or unreasonable inclusion into the domain of personal
autonomy is concerned, it can be taken note of the fact that the jurisdiction created by the
Courts where there are petitions asking for police protection on a daily basis as well as the
Courts devoting full-time into enquiring whether there has been a lawful marriage or not are

60
K Puttaswamy v. Union of India (2017) 10 SCC 1.
61
Navtej Singh Johar & Ors. versus Union of India thr. Secretary Ministry of Law and Justice AIR 2018 SC 4321;
W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016.
62
Joseph Shine v. Union of India 2018 SCC ONLINE SC 2.
63
Shafin Jahan v. Ashokan KM & Ors. 2018 SCC 16 408.

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mostly functions that have to be carried out by the executive. This has also been observed and
upheld by the Supreme Court of the United States in the case of Obergefell v. Hodges64 which
a prominent case dealing with lawfulness of same-sex marriages. It is unfathomable to argue
that the ordinance disempowers an individual and its personal liberty considering that it only
subjects the free will of a person to a machinery provision that are of a regulatory character.
These regulatory mechanisms only ensure dignity of an individual and protects their interests
while they exercise their right of personal liberty. Hence, it is hereby submitted that the
impugned ordinance is not in violation of the right to privacy of an individual.

C. THAT THE RELIGIOUS CONVERSION THAT TOOK PLACE WAS VOID

34. It is hereby submitted that the counsels for the respondents understand that the marriage in the
instant case has been solemnised as per the Special Marriages Act, 195465. It is however
contended that the conversion for the sake of marriage cannot be deemed valid since it has
been and non-bailable as per Section 3 read with 4, 5, 6 & 7 of the Uppam Pradesh Prohibition
of Unlawful Conversion of Religion Ordinance, 2020. The question on a valid conversion has
already been settled by the aforementioned arguments relying on the judgment in Stanislaus66
and Lily Thomas67. It is humbly submitted that the conversion which took place should be
voided.
35. It is humbly submitted to this Hon’ble Court that it is a well-settled fact in the instant case
which is also affirmed by the fact-sheet68 that the conversion was undertaken by Prabha for the
sake of appeasing her in-laws so that they would accept her inter-faith marriage with Daniel
better. It is pertinent to note the conversion in the instant case has been undertaken for the sole
sake of marriage which has been deemed as invalid in a catena of cases. In the recent case of
Priyanshi @ KM Shamreen & Anr. v. State of UP & Ors.69,, the learned bench of the Allahabad
High Court held that-“ Thus conversion of religion to Islam, in the present set of facts, of the
girls without their faith and belief in Islam and at the instance of the boys, solely for the purpose

64
Obergefell v. Hodger, 576 U.S 644; Bourke v. Beshear, 996 546 ( 2014); Love v. Beshear, 989 (W.D. Ky. 2014,
65
The Special Marriage Act, 1954. Act No.43 of 1954.
66
supra note at para. 16.
67
supra note at para. 17.
68
Fact Sheet, ¶ 24-25.
69
Priyanshi @ KM Shamreen & Anr. v. State of UP & three Ors.2020.
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of marriage, cannot be said to be a valid conversion to Islam religion.” The same has been
reaffirmed in the writ petitions disposed of Smt. Noor Jahan Begum @ Anjali Mishra & Anr.
v. State of U.P & Ors.70
36. Similarly, it was held that in the case of Lily Thomas & Ors. v. Union of India & Ors.71 Hon'ble
Supreme Court observed in paragraph Nos. 7,8 and 40 that conversion of religion of a non-
muslim without any real change of belief in Islam and only for marriage is void.In the case of
Skinner v. Skinner72 the Privy Council, while referring to the possibility that a change of
religion on the part of both the spouses might have the effect of altering rights incidental to the
marriage, was careful to add the qualification that such change must be made “honestly” and
“without any intent to commit a fraud upon the law” Indeed, it seems to us to be elementary
that if a conversion is not inspired by religious feeling and undergone for its own sake, but is
resorted to merely with the object of creating a ground for some claim of right, a court of law
cannot recognise it as a good basis for such claim but must held that no lawful foundation of
the claim has been proved.
37. In the case of Dr. Abdul Rahim Undre v. Padma Abdul Rahim Undre73, a learned bench of the
Bombay High Court threw light on conversion especially with respect to Mohammedan law-
“27. It is a well-known principle of civil law that a person born into or following one religion
continues to belong to such religion subject to conversion to another religion. Conversion to
another religion basically requires change of faith. To say the least it is a matter of conviction.
According to Mulla's Principle of Mohammedan Law74 any person who professes
Mohammedan religion that is, he acknowledges that there is but one God and that Mohammad
is his prophet is a Mohammedan. Such a person may be a Mohammedan by birth or he may be
a Mohammedan by conversion. It is not necessary that he should observe any particular rites
or ceremony to be an orthodox believer in the religion, no Court can test or gauge sincerity of
religious belief. It is sufficient if he professes Mohammedan religion in the sense that he

70
Smt. Noor Jahan Begum @ Anjali Mishra & Anr. v. State of U.P & Ors. 2015 ALJ 3 322.
71
supra, at para 7, 8 and 40.
72
Skinner v. Skinner (1897) ILR 25 Cal 537.
73
Dr. Abdul Rahim Undre v. Padma Abdul Rahim Undre 1982 AIR BOM 341.
74
Mulla's Principles Of Mahomedan Law (19th ed.) by M. Hidayatullah, Arshad Hidayatullah.

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accepts prophetic grant of Mohammedan (section 19, Chapter 2, page 19 of Mulla's Principles
of Mohammedan Law). Thus the real test is of professing Mohammedan religion.
38. The word ‘profess’ was thoroughly discussed in the case of Narayan Waktu v. Punjabrao75,
where it was said that a person was professing a certain religion “if a public declaration is made
by a person that he has ceased to belong to his old religion and has accepted another religion
he will be taken as professing the other religion. In the face of such an open declaration it
would be idle to enquire further as to whether the conversion to another religion was
efficacious.” In the instant case, there is no statement of fact that highlights Prabha’s attraction
towards the religion of Islam and its tenets and hence, it can be settled that Prabha indeed did
not profess the religion and hence, the conversion can be justified as one done merely for the
sake of marriage.
39. It is pertinent to note that since the State of Uttam Pradesh has promulgated an ordinance for
preventing forced conversion which are very similar to the Freedom of Religion Acts 76 passed
in other states in the Union of India such as the State of Arunachal Pradesh, Gujarat, Andhra
Pradesh, etc. It is similarly mandated in all of such legislations that when a ceremony for
conversion/conversion has taken place, the District Magistrate has to be intimated within a
stipulated period of time which is 60 days in advance in the instant case. Failure to do so would
be an offence as per Section 8(5)77. Post which, the district magistrate would hold an enquiry
through the Police to verify information as under sub-section (1) and (2) to identify the real
intention, purpose and cause of religious conversion and contravention of which would lead to
the conversion being voided. In the instant case, the facts are silent as to whether the same was
fulfilled considering the fast-track of events which leads to genuine questions regarding
adherence to law.

40. In a very recent PIL filed by advocate Saurabh Kumar questioning the constitutional validity
of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance (2020), the

75
Narayan Waktu v. Punjabrao 1958 AIR BOM 296 ¶ Punjabrao v. Dr. D.P. Meshram and others AIR 1965 SC
1179.
76
India’s Freedom of Religion Acts or “anti-conversion” laws are state-level statutes that have been enacted to
regulate religious conversions. The laws are in force in eight out of twenty-nine states: Arunachal Pradesh,
Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand.
77
Section 8, Special Marriages Act, 1954.
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Allahabad High Court observed that “when there is a fear psychosis spread in the community
at large and the community itself is endangered and succumbs to the pressure resulting in
forceful conversion, under the said circumstances it becomes necessary that the interest of the
community as a whole requires protection and no micro-analysis of individual interest can be
looked into. Here it is to be clarified that the interest is to be distinguished from group thinking.
The legislation in question protects public interest and maintains public order and it is not
community thinking but community interest which is being safeguarded by the promulgation
of the instant ordinance.”

41. It is hereby submitted that as per Article 51 of the Constitution of India 78, it is duty of the State
to foster respect for International Law Treaty obligations in the dealings of the organised
people of one and another. In 1966, the United Nations adopted the International Covenant on
Civil and Political Rights79 (ICCPR). Article 18(2) reads: “No one shall be subject to coercion
which would impair his freedom to have or to adopt religion on behalf of his choice”. In the
1981 declaration of the General Assembly80 resolved, Article 1(2) of the said declaration reads-
“ No one shall be subject to coercion which would impair his freedom to have a religion on
behalf of his choice.

42. It is also pertinent to note that working committee reports81 of the United Nations Human
Rights Council have taken note of forced conversions and how the violation of freedom of
conscience by non-state actors was being perpetrated but on account of non-sufficient State
machineries human rights were violated. It has been recommended in such reports that it is the
positive obligation of a State to protect the rights of such class of individuals that were being
encroached by non-state actors. As such, the Special Rapporteur on Freedom of Religion82 has

78
INDIA CONST. art. 51.
79
UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations,
Treaty Series, vol. 999, p. 171.
80
UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based
on Religion or Belief, 25 November 1981, A/RES/36/55.
81
Dawood Khan v. Canada, CCPR/C/87/D/1302/2004, UN Human Rights Committee (HRC), 10 August 2006.
82
UN Human Rights Council, Report of the Special Rapporteur on freedom of religion or belief, 23 December
2015, A/HRC/31/18.

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been publishing reports on existing and emerging obstacles to the enjoyment of the Rights to
Freedom of Religion and Belief.

43. In the same PIL referred to above, the Allahabad HC also provided an illustration to explain
what would be a case of forced conversion. It stated-“ A adult Hindu woman makes her choice
to marry a Muslim boy. The personal law does not give the Hindu woman the full status of a
wife as she is deprived of inheritance. It is only when the Hindu woman gives up her faith and
stops worshipping idol and accepts Islam as her religion post consummation of marriage she
will be considered to have entered a valid marriage. The aforesaid aspect has been considered
in detail in the recent decision of the Supreme Court. Therefore, even though Hindu woman
wishes to not give up her faith, she will have to give up her faith in order to enter a valid
marriage and accept Islam as her faith. This will amount to forceful conversion. Here again,
there is freedom of choice but there is loss of dignity and the conversion is not exercised as a
choice but on account of compulsion due to personal law intervening”.

44. It may be argued by the petitioners that since the parties marriage under the Special Marriage
Act, 1954 and not the personal laws and therefore, conversion is not necessary. However, it is
equally necessary in the instant case to consider that marriage and religion are two aspects
which are much more intrinsic in the sense and have impact of persons associated with the
parties or the community that they belong more than one can estimate. The fact that Prabha
converted her religion reflects on the fact that there was apprehension of objection from
Daniel’s family and Section 7 allows such an objection to be made by any person to a marriage
which will considerably stall its solemnization. It is also to be observed that the Special
Marriage Act is punitive considering as per Section 19, any person belonging to an undivided
family belonging to Hindu, Jain, Buddhist or Sikh religion shall be deemed to have severed
relations from one’s own family. Hence, it is hereby submitted that marriage under the Special
Marriages Act is not a strait jacket solution to solve issues regarding conversion under personal
laws. Hereby, it is submitted to this Hon’ble Court that the conversion (i) Was done for the
sake of marriage (ii) Was not out of Prabha’s own volition to side with the tenets of Islam and
hence, is to be declared as void.

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PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly requested that this Honourable Court may be pleased to adjudge and declare:

1. DISMISS the writ petition filed by the Petitioners as not maintainable before the Supreme
Court of Amphissa.

2. DISMISS the Special Leave Petiton (SLP) filed by the Petitioners as not maintainable
before the Supreme Court of Amphissa

And pass any such order, writ or direction as the Honourable Court deems fit and proper,
for this the Respondents shall duty bound pray.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

COUNSEL FOR THE RESPONDENTS

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