All You Need to Know About: Allahabad High Court’s Judgement on SMA

Reading time : 12 minutes

Introduction

Marriage is a social institution, and in India, marriage is considered very sacred. In which a boy and girl get the right to live a family life. Many religious people in India have marriages between them, and for this, the Special Marriage Act 1954 has been formed in India. Under this, people who belong to different religions can marry. Such marriages are conducted in the court by Sub-Divisional Magistrate (SDM) or additional district magistrate (ADM). But at present, getting married between people of two different religions is becoming a bit difficult. Because in many places, the marriage of a girl or boy is done by converting their religion, which is known today by the name of ‘Love Jihad.’ To prevent these incidents, first Uttar Pradesh has passed an ordinance called ‘Uttar Pradesh Vidhi Dharma Conversion Prohibition Ordinance,’ which is in discussion these days because this ordinance is partially harming the couple who live their lives in peace. Under which a couple has asked for help from Allahabad High Court and as a result, Allahabad High Court has given some Judgment which is in the interest of all the couples and all those who will marry in different religion will no longer have trouble in their ‘right to privacy.’

Understanding Special Marriage Act, 1954

Before discussing the Special Marriage Act 1954, we need to know how marriages occur in India. According to the Hindu Marriage Act and the Muslim Personal law, people can marry under their respective customs. Also, people can marry under the Special Marriage Act. The main difference between all these is that under the Hindu Marriage Act, the only two Hindu adults (a girl and a boy) can marry each other with their proper consent. Under Muslim Personal Law, only two Islam adults (a girl and a boy) can Nikah with his proper consent in front of the Maulvi. Under the Special Marriage Act, two adults of any religion can marry each other without changes their religion before marriage or after marriage. For example, Indian Actor Safi Ali Khan and Actress Karena Kapoor did their marriage under the Special Marriage Act without changes their religion. Even now, not Kareena or Safi changed their religion after their marriage along. Whatever method a couple uses for marriage, it does not matter whether the marriage is done under Hindu Marriage Act, Muslim Personal Law, and Special Marriage Act. Subsequently, a wife gets all the rights over her husband.

Conditions for the marriage in the Special Marriage Act[1]: – to get married, it is necessary that a boy and girl are not already married. According to Indian law, a boy must be 21 years of age to marry, and a girl must be 18 years old. This age applies to every religion, and if marriage is less than this age, it is considered a legal offense. A boy and girl must not have any mental issues, and also, they should give free consent for marriage without any undue influence.      

Further, whoever wants to marry under the Special Marriage Act, 1954 would be given notice thereof in writing form specified, and deposit the age documents along with the affidavit to the District Civil Court of their jurisdiction. Couples desirous of getting married are informed about their marriage by the marriage officer of the district on the information board. The notice lasts for thirty days from the date given, and if anyone has objections from the party’s wedding within these thirty days, they will come to the marriage office and describe their objection as per the procedure. After the expiry of the thirty-day notice, no one has any objection to the party’s marriage. Therefore, the parties appear before the SDM or ADM for the marriage with the two marriage witnesses and the registrar. Parties take the oath before the SDM or ADM, and by them issued the marriage certificate to the parties.

In the end, people and lovers of any religion who are in love can marry each other without converting and leaving their religion under the Special Marriage Act, 1954. The marriage is conducted by a sub-divisional magistrate or additional district magistrate in the court, which does not involve any pundit, maulvi, and pastor. There are only two marriage witnesses are required.

Controversy regarding Uttar Pradesh Prohibition of Unlawful Conversion of Religion ordinance 2020.

There is no law in India against marrying one religion to another because India is a secular country. Recently, the Uttar Pradesh Cabinet has drafted an ordinance regarding conversion and inter-caste marriage. This ordinance will check whether its sole purpose is to convert a girl’s religion and marry her. Because in any case, it happens, then the guilty can be imprisoned for up to ten years.

According to the “Uttar Pradesh Vidhi Virudh Dharma Sam Parivartan Pratishedh Adhyadesh 2020” (Prohibition of unlawful religion conversion), the marriage will be declared ‘Sunya’ (Null and void) if the “sole intention” was to “change a girl’s religion.” And guilty could be imprisoned for up to ten years. If it is found that any girl’s conversion regarding religion has been done through coercion, torture, or deception, then it will be a non-bailable offense. Also, the guilty would face fined fifty thousand rupees.

The UP government has decided in the matter of religious conversion that the guilty can be fined a minimum of fifteen thousand rupees or imprisoned for one to five years. In case of religious conversion of Scheduled Caste / Scheduled Tribe girl or under eighteen years of age, the convict may face a fine of twenty-five thousand rupees or imprisonment from one to ten years.

The U.P Cabinet minister Sidharth Nath Singh said regarding that ordinance. It will come to maintaining the normal law and order in Uttar Pradesh. Additionally, justice for women, especially for Scheduled Caste/Scheduled Tribe women. Also, he said we have found more than a hundred cases of changes in religion. And by lying, deceiving, forcing, or forcing the heart to do all this to change the religion of a girl. So, it is necessary to have a law in this context. Last year, the U.P State Law Commission submitted a report on the subject to Chief Minister Yogi Adityanath, along with a draft ‘U. P freedom of Religion Act, 2019.’ It proposes that ‘ Conversion is done for a sole purpose of marriage to be declared null and void.’

Now, what is happening controversy has started on that ordinance. Because as we know, India is a secular state but, due to that ordinance, has arrived distress the right to choose a life partner. If lovers of different religions want to marry each other, they are afraid of the ordinance, due to which they cannot choose the partner of their choice. Uttar Pradesh’s ordinance is unconstitutional, which is clearly violating Article 19 of the Constitution of India. For this, the Public Interest Litigation is also in place in the Allahabad High Court. In addition, the Allahabad High Court has taken note of certain sections of the ‘Special Marriage Act’, which is negatively affecting the lives of some peaceful couples. Consequently, in the case of Safia Sultan v. Uttar Pradesh, the court ruled in favor of the couple.

Allahabad High Court’s take on the issue

After the Religion changes ordinance passed by the ‘U. P government, the Allahabad High Court paying attention to the ordinance.’ They found that an important issue under a case is that the notice of the people getting married by the marriage officer is put on the notice board of the marriage office according to the Special Marriage Act and asked ‘ whether anyone has any objection this marriage. All this is the exploitation of the right to privacy of those who marry. Because the decision of two people to get married is their own, there is no need to seek the opinion of others in this marriage. Which indicates exploitation of the ‘right to choose.’ Therefore, this is a matter in front of Allahabad High Court, which is a deep issue.

Critical Analysis

According to the Uttar Pradesh Government, there is an earlier judgment of the Allahabad High Court in favor of the U.P ordinance. ‘Conversion just for the sake of marriage cannot be accepted[2].’ Therefore, The U.P Government said that we would ensure adherence to the earlier ruling of the Allahabad High Court, and also bring a strict law to put a check on the ‘Love Jihad.’ Presently, in the case of Safiya Sultan v the State of U.P, the Allahabad High Court observed that the earlier verdict does not set down a good law in society.

Presently, in the case of Safiya Sultan v the State of U.P, the Allahabad High Court observed that the earlier verdict does not set down a good law in society. Now, the Court said the ‘right to live’ with a person of his/her choice irrespective of religion professed by them, is intrinsic to the right to life and personal liberty. Interfering in a personal relationship would be a serious breach of the ‘right to freedom of choice of two persons.’ ‘We fail to understand if the law permits two-person even of same-sex to live together peacefully.’ Then, neither any individual nor a family nor even the state can have the right to objection their relationship of two major independent individuals. That observed by the Judges together.

Also, the Judges refer to the Supreme Court’s Judgement in K.S. Puttaswamy v Union of India. Which deals with the ‘right to privacy’ of an individual. ‘The autonomy of an individual is the capacity to makes a decision on vital matters of concern to life.’ Indeed, the opinion of the Center has told Parliament that the word ‘Love Jihad’ is not defined under any present law, and no case has been reported by any central agency. Also, the Census does not record any interfaith marriages, and the center has not convicted any nationally representative survey to find out about such marriages. Although, only BJP ruled states make a law on the ‘Love Jihad.’

In the case of Safiya Sultan v. The State of UP (Habeaus Corpus), a Muslim girl, Safiya, married a Hindu boy, Abhishek. Following the new ordinance passed by the UP government, Safiya’s father lodged an FIR against Abhishek, her daughter’s husband, stating that her daughter was a minor and had been converted and got married. When both sought help from the Allahabad High Court, the court asked why you did not marry under the Special Marriage Act and converted and got married. His lawyer said that if he had done this, he would have had to apply for his marriage a month in advance, the notice of marriage would remain on the notice board for thirty days so that all those who objected to that marriage would come forward and this notice would come to also their homes. Which would threaten their privacy and life. Because all this is not possible in a love marriage, so they converted and got married. The court found his point to be true since Safia was not a minor. The court decided that henceforth the notice will be with the consent of the married people from now.

Conclusion      

Conclude, this ordinance directly violates the right to privacy, freedom of choice of the life partner, and personal liberty. This is a deep issue, due to that Allahabad High court take note some sections of the special marriage act, 1954. Also, they had ruled that from now the notice of marriage on the notice board of the marriage office is not mandatory. It up to couples, whether they want to publish it or not. We may hope this ordinance would be challenged in the Supreme Court of India.


[1]Conditions relating to solemnization of special marriage, under Section 4 of the Special Marriage Act.

[2] Noor Jahan Begum @Anjali Mishra & Anr. v. State of U.P. & Ors (2014),

Author: Aditya Kohli, Dharmashastra national law university, Jabalpur, M.P.

Editor: Kanishka Vaish, Editor, LexLife India.

Explained: U.P. Recovery of Damage to Public and Private Property Ordinance, 2020

Reading time: 8-10 minutes.

The Division Bench of the Allahabad High Court comprising of Chief Justice Govind Mathur and Justice Samit Goyal, on 18th March 2020, while issuing notice to the Uttar Pradesh Government, said that “the ordinance is arbitrary in its very nature”. As per the learned counsels who made their submissions before the Court, the Ordinance also contravenes the law laid down by the apex court in the Rojer Mathew v. South Indian Bank Limited (2019).

 The Bench added that the purpose of the Ordinance seems to be to undermine the law laid down by a Bench of the High Court which recently ordered the State the removal of the hoardings displaying personal information of those accused of damaging properties during the protests against the Citizenship Amendment Act.

Purpose of the ordinance and its salient features:

On 9th March 2020, the Allahabad High Court ordered the State government to remove the hoardings erected at major intersections of Lucknow, stating the decision to be an “encroachment of public liberty”. Senior lawyer Ramakant Gaur said that the UP Government lacks the legal sanctity regarding such publications of photographs and erection of banners. Thereafter, the State government of Uttar Pradesh armed itself with a rigorous new law to recover compensation from those who damaged or may damage public and private property during protests and riots. The Ordinance establishes a “Claims Tribunal” which would have the authority to inquire into the impugned complaints and assess the damages.

As per the Ordinance, the owner of any private property or the head of the concerned office in respect of the public property damaged may file claims for compensation within three months of such incident. The order passed by the Tribunal would be final and no appeal would stand against it before any court of law. The Ordinance allows a presumption of guilt of the accused and expects them to present evidence of their innocence, thereby taking the burden of proof off the accuser’s shoulders.   

Salient features:

Claim Petition:

The Ordinance prescribes that during protests/demonstrations, etc.:

In case the damage is caused to any private property, its owner may complain with the Station officer;

In case the damage is caused to any public property, the District Magistrate/ Commissioner of Police shall take immediate steps to file a claim petition before the Claims Tribunal within three months, based on the reports of the concerned circle officer of Police prepared instead of the FIR registered against such incident.

Claims Tribunal:

For adjudicating these claims, the Ordinance stipulates the establishment of a Claims Tribunal at such places as may be notified.

Constitution of the Tribunal:

The Tribunal will consist of a Chairman and as many members, as the state may prescribe. The Chairman of the Tribunal will not be below the rank of a Retired District Judge and the Member of the tribunal will not be below the rank of an officer of Additional Commissioner.

The procedure of Claims Tribunal:

All claims petitions will be filed before the tribunal within 3 months from the alleged date of the incident. A 30 days condonation of delay provision has also been prescribed, subject to the applicant showing reasonable cause.

Notice to parties, appearance, and filings:

A notice of the initiation of proceedings will be sent to the opposite party by the Tribunal, along with a copy of the claim petition. Persons who fail to appear on the appointed date will proceed ex-parte.

The opposite party may file its written statement, within 30 days from the date of service of notice.

Recording of evidence:

The tribunal may take evidence on oath and summon the documents, as may be required.

Appearance through legal practitioner:

The Tribunal may, in its discretion, allow any to appear himself before it through a legal practitioner.

Powers, decisions, and appeal:

The Tribunal will be empowered to provide appropriate compensation to the claimant, based on the principles of absolute liability. Such liability will be borne by the actual perpetrators/instigators of the crime.

The Tribunal has also been given the power to appoint a Claims Commissioner to estimate the damages and investigate liability to assist in holding the inquiry. Such Commissioner will be responsible to make a report to the Tribunal within 3 months.

The Tribunal will have all the powers of a Civil Court. It has also been empowered to hold local inspections by visiting the site of the incident which in its opinion is necessary for a proper decision, at any stage of the inquiry.

The judgment of the tribunal will record the findings on each issue with reasons, amount of compensation and joint/severable liability.

The decision of the Tribunal will be final and no appeal will be maintainable against such order before any court.      

Controversy around it:

The impugned Ordinance has a surrounding controversy given some very notable reasons. The ordinance promulgated on 15th March 2020 aims at recovery of damages to public and private property during hartal, bandhs, riots, protests, etc. from those accused of causing such damage via a Claims Tribunal with no authority of judicial review by any other court of law. The Supreme Court, while hearing the appeal of the State government against the order of the Allahabad High Court to remove the hoardings erected in the state capital, asked about the law which supported the impugned action of the Yogi Adityanath led government, and consequently, the Ordinance was cleared by the state cabinet on Friday, 13th March 2020.

The Court held that the Ordinance seemed to be aimed at frustrating and undermining the order of the Court which urged the State government to remove the hoardings given that it had no legal sanctity.

Further, the court observed that the field of law wherein the Ordinance is deemed to be operative has been appropriately and exhaustively covered under central enactments, Code of Criminal Procedure, 1973 and Prevention of Damage to Public property Act, 1984.

Probable way forward:

The suitable way to continue with such compensations seems to be to try and arrange the intended recoveries under the existing laws and meanwhile, wait for the court to accept the justifications of the Ordinance. However, if the court shall deem that the ordinance promulgated by the U.P. government is not acceptable within the ambit of the Constitution, other efforts can be ensured in this regard, both at State and National levels.

Conclusion:

Back in 2011, the Supreme Court had itself stated that there must be stringent laws if the damages to properties during protests and riots have to be minimized. The U.P. Recovery of Damage to Public and Private Property Ordinance 2020 is a positive effort towards the cause. However, it must be ensured that the law is in accordance with the spirit of the Constitution and within the scope of the powers of the legislature. It must be ensured that the legislature does not abuse or misuse its power or manipulate the existing laws to achieve a result.  

Author: Himanshu Yadav from Faculty of Law, University of Allahabad, Prayagraj.

Editor: Tamanna Gupta from RGNUL, Patiala.

Hoardings by UP police: Constitutional angle

Reading time: 6-8 minutes.

Recently, the Allahabad High Court directed the Yogi Adityanath-led government of Uttar Pradesh to remove the hoardings containing names, photographs and residential addresses of the fifty-seven anti-CAA protestors and severely condemned the act by declaring it violative of right to privacy under Article 21 of the Indian Constitution.

The right to privacy refers to the right of an individual to be protected from public scrutiny and review. Article 21 of the Indian Constitution recognizes the right to privacy as a fundamental right. This was validated by the Supreme Court of India in the landmark case of Justice K.S. Puttaswamy vs. Union of India in 2017. 

Significance of this development

The court took suo moto cognizance of the incident under Article 226 of the Indian Constitution. This means that the Supreme Court (under Article 32) and the High Courts (under Article 226) can take an action when they are detailed about the violation of the law. This highly reflects judicial activism on the part of judges, to file a Public interest Litigation (PIL) and control the situation pragmatically and systematically.

The action taken by the judges was significant as the act by the Uttar Pradesh Police was ultra vires (beyond its powers) as it tried to take law in its own hands and punish the accused to create a deterrence effect, though they were not authorized for the same.

The right gained its validation precisely in 2017 and so, many precedents are required to be set as examples for its proper application. So, the PIL by the judges acted as a milestone in the development of the right to privacy and added to its worth. This step made it a stronger right and more authoritative as well.

Moreover, the right to life and personal liberty under Article 21 is the most basic fundamental right which is enforceable even during the times of emergency. Thus, it must gain recognition.

Background: The hoardings by UP police

On March 5, 2020, the police had placed several hoardings in the city of Lucknow pinpointing those accused of violence during the protests against the Citizenship (Amendment) Act. The hoardings contained the names, photographs and residential addresses of the accused. Additionally, the accused were also asked to compensate for the damages to public and private property within a prescribed time or have their properties confiscated by the district administration.

However, a division bench comprising Chief Justice Govind Mathur and Justice Ramesh Sinha took suo moto cognizance and held a special meeting. The Allahabad High Court then ordered the District Magistrate and Commissioner of Police of Lucknow to remove the hoardings as the act was highly undemocratic and violated Article 21 of Constitution and “amounts to unwarranted interference in the privacy of people”.

It further stated that “privacy was ‘intrinsic component’ of Part III of Constitution of India that lays down our fundamental rights relating to equality, freedom of speech and expression, freedom of movement and protection of life and personal liberty.”

Privacy as a constitutional right

The right to privacy in India has had a long history. The right to privacy was first discussed in 1954 in the case of M.P. Sharma vs. Satish Chandra wherein an eight judge bench held that makers of the Constitution did not consider the power of search and seizure as a part of the fundamental right of privacy and it was different from the Fourth Amendment of the Constitution of the United States.

Again, in 1962, a six judge bench in case of Kharak Singh vs. State of Uttar Pradesh held that domiciliary visits at night was unconstitutional for violation of ‘personal liberty’, but upheld that the right of privacy is not a guaranteed right under the Constitution. However, Justice Subba Rao gave his dissent stating that even though the Constitution did not declare the right to privacy to be a fundamental right, it was still an essential ingredient of personal liberty.

A similar incident happened in 1975 in the case of Govind vs. State of Madhya Pradesh where the three-judge bench upheld the existence of a fundamental right to privacy for the first time but the right was not absolute and could be interfered with by a procedure established by law.

Finally, in 2017, a nine-judge bench in Justice K.S. Puttaswamy v. Union of India gave a unanimous decision and proclaimed that Article 21 of the Indian Constitution guarantees to each individual a fundamental right to privacy.

Now, this leads to the question, how did the hoardings violate the right to privacy?

How were the hoardings in violation of this right?

The hoardings were clearly in derogation of Part III of the Constitution. By putting up the hoardings of the protesters, the police infringed their right to privacy under Article 21 and lowered their dignity. Moreover, the police even failed to appreciate their right to freedom of speech and expression under Article 19(1)(a). Even in the K.S. Puttaswamy case, the right to privacy was considered an element of human dignity and personal liberty.

Further, the police contended that the hoardings were put to create a deterrent effect but here are many more accused who have committed more heinous crimes but still there details have not been put up on the hoardings and thus, it was not justified to humiliate these protesters and invade their privacy.

Conclusion

The right to privacy is an ideal example of what we say as ‘today’s dissent is tomorrow’s majority’. It has had a remarkable history and overcame many stumbling blocks before finally gaining recognition in 2017.

The right to privacy is an intrinsic component of the Indian Constitution as well as of personal liberty guaranteed under Article 21.

In the above-mentioned incident, the Uttar Pradesh Police was not justified in putting up the personal details of the anti-CAA protesters as it not only violated their right to freedom of speech and expression but also violated their right to privacy. The act was highly undemocratic and challenged the Constitution.  The suo moto action taken by the judges gave a new ray of hope and took the right to privacy on a higher pedestal and thus, making it stronger and more authoritative.

To conclude, judicial activism should continue to be much more prevalent in India where injustice is not ignored and the rights of every person are successfully secured.

Author: Arya Mittal from Hidayatullah National Law University, Raipur.

Editor: Tamanna Gupta from RGNUL, Patiala