While a bench of Justices M R Shah and C T Ravikumar agreed to examine an appeal filed by the MP government against the HC order, it turned down its plea for an interim stay. The state government had rushed to the top court as the HC prima facie held that Section 10 of the Madhya Pradesh Freedom of Religion Act (MPFRA), 2021, requiring a two-month prior notice to the district magistrate before the conversion, was unconstitutional and stayed its operation in November last year.
The HC had said, “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 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.”
Pressing hard for an interim stay, solicitor general Tushar Mehta contended that the issue of religious conversion was a “national issue” and inter-faith marriage was being used for conversion. He said that if it was not stayed, the HC order would be replicated across the country.
The SG said that the law in question did not prohibit either marriage or conversion, its ambit restricted to requiring people to inform district magistrate 60 days in advance about their decision to convert. He said that provision for prior notice was there in also in the 1968 Act also that was upheld by a constitution bench of the apex court.
The bench, however, pointed out that in the 1968 Act there was no penal provision, which is part of the newly enacted Madhya Pradesh Freedom of Religion Act. “Section 10(2) of the Act is a penal provision. All conversions cannot be illegal conversions,” the bench said.
Mehta insisted that a stay on the HC order was much needed and said, “We cannot shut our eyes that marriage is used for conversion.” He added that the law was framed in larger public interest to stop unlawful conversion by coercion and allurement.
The bench said that it would consider the plea for interim stay on the next date of hearing on February 7 and issued notice on the state’s appeal.
Under Section 10, for a religious conversion to be valid, the law requires a 60-day prior “declaration of the intention to convert” to the district magistrate by the individual as well as the priest carrying out the conversion. It is only after this that a couple from different religions can be legally married.
Section 10(2) obligates religious leaders facilitating the conversion to inform the district magistrate 60 days before the intended date of conversion, failing which, they can be punished with up to a five-year jail term and made liable to pay a fine not less that Rs 50,000.
Finding this provision to be prima facie unconstitutional, the high court directed the state not to prosecute adult citizens for not complying with the provision of prior notice and solemnise marriages on their own volition.
The new law was intended to replace the existing Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968. Section 5 of the MPFRA, 2021 prohibits unlawful conversion from one religion to another by use of misrepresentation, force, undue influence, coercion, any other fraudulent means, allurement, or promise of marriage.
Staying the operation of 60 days’ prior notice to the DM, the HC held, “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, is unconstitutional in the teeth of aforesaid judgments of this court. Thus, till further orders, respondent shall not prosecute the adult citizens if they solemnise marriage on their own volition and shall not take coercive action for violation of Section 10 of the Act.”
Citing judgments of the SC, the HC had said that in the Lata Singh case it was recognised by the court that marriage lies within a core zone of privacy of a citizen which was 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-judge bench has drawn the curtains on this aspect by holding that family, marriage, procreation and sexual reorientation are all integral to the dignity of the individual,” it had said.
