Allahabad HC Upholds Fundamental Rights Despite Challenges in UP

The high court has delivered several admirable recent judgments on the right to marry and choose a partner.

Uttar Pradesh Chief Minister Yogi Adityanath’s government on 24 November passed a new ordinance to tackle ‘love jihad’.     

(Photo: The Quint)

On Tuesday, 12 January, the Allahabad High Court delivered the latest in a recent series of significant judgments and orders upholding the fundamental rights of individuals.

By holding that the 30-day public notice period and objections procedure for marriages under the Special Marriage Act could not be mandatory, the court struck an important blow for protection of civil liberties, and reaffirmed the importance of the right to privacy, and of autonomy, that is guaranteed under the Constitution.

The provisions of the Act imposing these requirements, according to the high court,

“invade in the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.”

The effects of this order in the long-term could be immense, as the public notice period and objections procedure under the SMA was being used by families and right wing religious groups to harass and intimidate inter-faith couples – which ironically would cause many of them to consider having one convert to the religion of the other for the sake of convenience.

Attempts to stifle inter-faith marriages are currently increasing in several ruled states in the country, with laws being enacted that on paper claim to deal with unlawful conversions, but are of course touted as attempts to tackle the bogey of ‘love jihad’.

While it is yet to rule on the validity of Uttar Pradesh’s ordinance on this issue, the Allahabad High Court seems to have stepped in time and again of late to provide succour to young people in love, protecting not just inter-faith couples, but also the general right of adults to choose their life partners – despite a challenging social and political atmosphere in UP

Here are some instances of the same:

Deeming Religious Conversion for Marriage as Unacceptable - NOT Good Law

Earlier in November 2020, as the “love-jihad” discourse grew shriller, an Allahabad High Court bench of Justices Pankaj Naqvi and Vivek Agarwal held that it is not good law to deem religious conversion singularly for the purpose of marriage as unacceptable – which is of course a cornerstone of the new UP ordinance and of similar laws being enacted in other states.

“To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown-up individual but would also be a threat to the concept of unity in diversity.”   

Further, the Court said: “Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.”

This High Court ruling came in a plea filed by Salamat Ansari and others seeking to quash an FIR that had been lodged against him by the father of his wife. The father had, in the FIR, reportedly alleged that that Ansari had kidnapped his daughter, who had thereby abandoned Hinduism in order to marry Ansari.

The High Court said that it did not see the woman Priyanka Khanwar and the man Salamat Ansari as Hindu and Muslim, but as two-grown up individuals who had chosen out of their own free will to live together peacefully and happily.

HC Protects Man From Arrest Under Anti-Conversion Law

The Allahabad High Court, in December, also prevented the arrest of a man called Nadeem who was alleged to have persuaded the wife of the complainant to covert for marriage.

The High Court also observed that there was no material on record to suggest that the man had forced or coerced the wife of the complainant and that the allegations in the case were evidently based on suspicion.

Pointing out that woman was an adult, the Court said:

“She as well as the petitioner have a fundamental right to privacy and being grown-up adults who are aware of the consequences of their alleged relationship.”

‘Can’t Interfere In Life Of Adults Living Together’

Reiterating that no one can interfere in the lives of two adults who are living together, a single judge bench of Justice Saral Srivastava, of the Allahabad High Court provided protection to an inter-faith couple in January 2021 as well.

“The Court has repeatedly held that where the two individuals having attained the age of majority, are living together, nobody is entitled to interfere in their peaceful life.“

Allahabad High Court

In this specific case, a Hindu woman had submitted before the court that she wanted to embrace Islam and had willingly converted. After the conversion, the woman said that she solemnised her marriage with her Muslim husband. The couple was, however, being harassed by their families.

After the submissions, Justice Srivastava ordered the Superintendent of Police, Bijnor to provide protection to the couple and also ordered the husband to deposit three lakh rupees in favour of his wife.

The next date of hearing in the case has been fixed for 8 February.

Live-in Relationships Not an Offence

The Allahabad High Court on 2 December had also reaffirmed that two consenting adults in a relationship had the right to live together without any interference from their families.

The court pointed out that though live-in relationships are not fully accepted by Indian society and may be perceived as immoral, they do not amount to an offence under any law.

The order was passed by a bench of Justices Anjani Kumar Mishra and Prakash Padia and was based on a petition filed by a couple seeking protection from harassment by the woman’s family.

The woman, 24, had been living with her 28-year-old partner for six months after her family attempted to forcefully marry her off to older men. The court was told that once the woman found out about such a situation, she had no option except to live away in her personal interest and she decided she to live with her partner on her own free will and without fear and pressure

Even though this specific case does not pertain to an inter-faith couple, it is essential to note that the Court ruled:

“It is settled law that where a boy and a girl are major and are living with their free will, then, nobody including their parents, has authority to interfere.”   

Other Instances of the HC Upholding Fundamental Rights

It is not in matters of the heart alone that the Allahabad High Court has stood firm. The court has also, time and again over the last year, stood firm on civil liberties in general. Some of the examples are as follows:

ON BANNERS OF THOSE ACCUSED OF VIOLENCE DURING ANTI-CAA PROTESTS: When the UP government decided to put up hoardings “naming and shaming” those accused of violence during anti-CAA protests in Lucknow, the Allahabad High Court pulled no punches in calling the state out for its “undemocratic” infringement of privacy.

ON DR KAFEEL KHAN: The Allahabad High Court also ordered the release of Dr Kafeel Khan who was arrested on 12 December, 2019, after he, in a speech, at an anti-CAA protest, had said: “‘Mota bhai’ teaches us to become Hindu or Muslim but not human beings”, and was subsequently detained under the stringent National Security Act (NSA). The court declared that the detention was illegal and there appeared to be mala fide intentions behind it.

ON INCARCERATIONS UNDER UP’S COW SLAUGHTER ACT: The Allahabad High Court in October 2020 expressed concern over the misuse of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 “against innocent persons.” The court also questioned the credibility of the evidence submitted by the police in such cases, while granting bail plea to an accused who had been charged under the Act.

ON ATTEMPT TO MURDER CHARGES AGAINST TABLIGHI JAMAAT ATTENDEE: The Allahabad High Court also held that charging a person who had participated in the Tablighi Jamaat convention under Sections 307 (attempt to murder) of the IPC prima facie reflected an abuse of power and stayed the criminal proceedings against them.

While Other Courts Evade, Allahabad HC Seems to Grasp the Nettle: Sanjay Hegde

Speaking to The Quint about these recent decisions by the Allahabad High Court, senior advocate Sanjay Hegde noted that the court had been willing to take a stand even in difficult cases:

“While many courts have opted for evasion and self-abnegation, the Allahabad High Court seems to have grasped the nettle and proceeded to dispose off matters in a manner favourable to the citizen.”   

Hegde lauded this willingness to stand up for fundamental rights, saying that the court has “in some matters has played the much required role that a constitutional court has to adhere to.”

Despite the “turbulent climate”, Hegde felt that the court had been admirably able to hold its own.

‘Freedom to Marry—A Paramount Human Right’: Lawyers Arguing the Love Jihad Case

Advocate Shashwat Anand, who is presently arguing the case at the Allahabad High Court, against the UP Government’s new anti-conversion law said that he hopes that “just like the Allahabad High Court, other constitutional courts would follow suit in upholding these inalienable, basic civil rights of the citizens”

“The freedom to marry is one of the paramount natural human rights essential to the pursuit of happiness by free citizens and fundamental to our very existence and survival,” Anand further explained. The high court’s recent orders emphasising these principles are a shot in the arm for this cause.

“To deny this fundamental freedom at the behest of the society or the State, is surely to deprive all the State’s citizens of liberty and personal autonomy, reducing them to the realm of lifeless machinery – rather than free men.”   

Shashwat Anand, Advocate

Advocate Devesh Saxena, who is also arguing the “love-jihad” case at the Allahabad High Court, said that some might term the decision of the court on the Special Marriage Act as overreach, but he considers the judgement as a “peculiar instance of judicial statemanship and innovation.”

“The judgment correctly establishes itself on the principle that laws should be transitional and must change with the changing times… The judgment recognizes and emphasises personal liberty and privacy as fundamental rights, including within its sphere right to choose a partner without interference from the State, family or society.”   

Devesh Saxena, Advocate

‘People are Wondering if SC Will Take a Leaf Out of Allahabad HC’s Book’: Retired HC Judge

Citing the Allahabad High Court’s stellar recent record in not just the matters of the right to choose a partner, but the other civil liberties cases as well, Justice Amar Saran, a retired judge of the same court told The Quint:

“There appears to have been a simultaneous soul-searching and reflection on their constitutional oath by a few vanguard Allahabad High Court judges. These judges are not obsessed with Supreme Court berths or tempting post retirement appointments and instead have realised that they are in a unique, privileged position to raise a voice against arbitrary actions of the State.” 

He noted that the court had been receiving plaudits from the public as well because of their recent orders and that “people are wondering if the Supreme Court will take a leaf out of their book.”

Justice Saran concluded by sounding a brief note of caution in light of the prevailing climate which was causing the court to have to deliver these decisions, saying:

“It is also to be seen whether these luminescent orders are only a drizzle and a flash in the pan or are they going to be a torrent and the norm against any future State excess.”