May 26

Constitutional Validity Of The Uttar Pradesh Prohibition Of Unlawful Conversion Of Religion Ordinance 2020

first_imgColumnsConstitutional Validity Of The Uttar Pradesh Prohibition Of Unlawful Conversion Of Religion Ordinance 2020 Kunika16 Dec 2020 2:29 AMShare This – xThe Governor of Uttar Pradesh has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 with the aim of prohibiting ‘unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage’. The haste with which the legislation has been passed and…Your free access to Live Law has expiredTo read the article, get a premium account.Your Subscription Supports Independent JournalismSubscription starts from ₹ 599+GST (For 6 Months)View PlansPremium account gives you:Unlimited access to Live Law Archives, Weekly/Monthly Digest, Exclusive Notifications, Comments.Reading experience of Ad Free Version, Petition Copies, Judgement/Order Copies.Subscribe NowAlready a subscriber?LoginThe Governor of Uttar Pradesh has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 with the aim of prohibiting ‘unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage’. The haste with which the legislation has been passed and enforced directs to the approach of the government towards minorities, which is stated by the Chief Minister in many statements. The Ordinance is against the provisions of the Constitution primarily on two aspects- the procedure which was adopted to enact the legislation and secondly, the manner in which it infringes the Right to Privacy mandated under Article 21 of the Constitution. Procedural irregularities The legislation has been enacted as an Ordinance by the Governor of the State under the provisions of Article 213 of the Constitution which extends the legislative powers to the Executive. The power of Governor under Article 213 is defined as such- If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require. A bare reading of the Article provides that the Governor can exercise the power only when “circumstances exist which render it necessary to take immediate action”. Thus, as a sine qua non the Governor has to be satisfied of the exigent situation, which is the sole ground for the exercise of this legislative function. In the absence of such an urgency, the exercise of legislative power by the Governor is unconstitutional. Such hasty passing of Ordinances without any reason requiring immediate action has been held to be illegal as it seems to be undertaken ‘primarily to by-pass debate and discussion in the legislature’ (RC Cooper v. Union of India), which is anti-democratic. The compelling reason which was purported to be cited in the instant case was the rise in the cases of ‘love jihad’ or forced conversion for marriage. Moreover, the Chief Minister had cited the two decisions of single judges of High Court of Allahabad (Priyanshi @ Km. Shamren v. State of U.P. and Noor Jahan Begum @ Anjali Mishra vs. State of U.P.) which had held marriages after religious conversion to be void. No statistics, facts or figures have been cited by the government as an evidence of the compelling circumstances. On the other hand, there is abundance of data against the proposition. The Special Investigation team appointed by the UP Police to gather data and information regarding the cases of ‘love jihad’ found no concrete proof as most of the cases of Hindu-Muslim marriages turned out to be consensual. The women in all such cases had married persons of different religion out of their own free will. Further, the Division Bench of the High Court of Allahabad decried the two aforementioned cases and held them to be “not good laws” under the Constitution (SalamatAnsari v State of UP). In the light of these factors, no circumstances existed before the government which required the immediate action of promulgating an Ordinance by-passing the regular prescribed procedure of law making through the Parliament. This subject definitely calls for a thorough debate and analysis by expert committees before being passed as the law of the land. The process of enacting this legislation containing such stringent penal provisions is an anathema and is purely an act making mockery of the Constitution. Complete negation of Privacy Rights Apart from the procedural irregularities, the legislation completely undermines the Constitutional principles and rights ensured thereunder. Private life of an individual and the freedom to take decisions for the private life have been held to be inviolable fundamental right of every individual. Through numerous decisions, the Courts have recognised and upheld the sanctity of personal space which includes the decisions with respect to marriage and family life. Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India (Salamat Ansari v State of UP).Image Source: TwitterIn the case of Lata Singh v State of U.P, the Supreme Court has very clearly laid down the law regarding inter-faith and inter-religious marriages, and has held thus- “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” While declaring the decisions on ‘love jihad’ by the single benches of High Court of Allahabad to be not good law, the Division Bench had held that “We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. 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. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals”.In the case of K.S. Puttaswamyv Union of India (famously known as the Right to Privacy judgment) Hon’ble Supreme Court held that- “The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised.”Unlawful infringement with this right has been held to be unconstitutional under the Right to Privacy judgment. The judgment has asserted that no law could interfere with the privacy rights of the people and enter into their private lives without any reasonable and justifiable reasons and no law would be held to be a good law if it attempts to do so without providing a procedure which is proportionate and which ensures a rational nexus between the objects and the means adopted to achieve them. In order to determine this, the judgment developed a test and called it the ‘Triple Test’ comprising three elements of legality, need and proportionality to determine the correctness of the legislation on the touchstone of privacy rights. It has been held by the Court that – The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference. The present legislation fails miserably on all the three elements as it is neither legal, nor the government has been able to justify any legitimate state aim and the provisions of the Ordinance are not proportionate to the object and needs sought to be fulfilled by the law. It unjustly interferes with the personal rights of the individual and makes the acts declared by the Courts to be private (right to marry of one’s own choice and right to conversion of religion) criminal by including provisions of imprisonment. The ‘victims’ under the Ordinance are rendered remedy less with no procedural safeguards against any form of abuse. Hence, the Ordinance negates the privacy rights prescribed under Article 21 of the Constitution. Thus, the Ordinance is in absolute contradiction to privacy rights; is illegal, unjustified and against the principles of constitutionalism and it ought to be declared unconstitutional. Views are personal.(Author is a practicing Lawyer at the Supreme Court of India)Next Storylast_img read more

January 26

Humanitarian describes work with child refugees

first_img“Children are moving; children are on-the-go; children are unsafe in the world. It’s our job — my job — to keep them safe.”Saint Mary’s alumna and associate director of Save The Children Sarita Fritzler spoke at the College on Tuesday afternoon to talk about her work with the D.C. organization and raised the issue of child protection for refugees at the U.S.-Mexico border as well as the rest of the world.After graduation, Fritzler joined the Peace Corps and was initially stationed in Zambia. There, Fritzler said her passion for children and child safety grew. After a year, Fritzler said she was moved to South Africa to work with Save the Children.Fritzler currently works in Texas to aid the large numbers of unaccompanied children and family units who have crossed the southern border into the United States. With the combined effort of Catholic Charities, the American Red Cross and FEMA, Save the Children offers children access to food, water and shelter.“This sort of crisis, or any crisis, can happen in your own backyard, and it can happen in places like Syria,” Fritzler said. “But it’s happening in our own backyard at this very moment in McAllen, Texas. Children who have left their homes in El Salvador, Honduras and Guatemala are seeking safety above all … they come to the U.S. for asylum.”According to Fritzler and Save the Children, there are 8.4 million child refugees all over the world. These children have been forced from their homes and are not living in their home country any longer. Further, an additional 16.5 million children are internally displaced, forced within their countries to leave home due to violence, political instability and abuse.“This includes children in South Sudan, Somalia, Iraq, Syria, here in the United States and in central America, and these numbers go up every year,” Fritzler said. “These are numbers from the end of 2013, so we are not even including the recent immigrant crisis down on the border.“In June, you probably heard the media reports of large numbers of children coming across the border,” she said. “[This included] 68,000 more children, as young as one all the way up to 15-16 who were crossing by themselves. An additional 68,000 were coming with a parent, so that’s 120,000 since June alone.”With all of these refugees scattered and separated from their families, Fritzler said the agency works to ensure that children are safe when traveling to the border, when in border patrol custody and when they are reunited with families.“President Obama declared this a humanitarian crisis at the end of May, but it’s important to note that this is not a new crisis,” she said. “It was declared a crisis because border control was overwhelmed and couldn’t handle the number of refugees they were getting.”Fritzler said this is not the first time the U.S. government has proved itself incapable of responding to the needs of children in disasters.“The [U.S.] just has no capacity to respond and help support children. After Hurrican Katrina, it took seven months to reunite a 5-year-old child with their parents when they were separated after the hurricane,” Fritzler said. “We need to do more. We need to be better.”Save the Children has responded to these needs by setting up child-friendly spaces at the border and in refugee camps. There are spaces specifically designed to support a child’s emotional well-being and recovery, she said.Compared to the detention sites established by the border patrol, shelters set up by Save the Children provide for those who are in desperate need of support.“The detention sites are jails — crowded, crowded, cold jails. The women call them the ice cubes, like freezers, because of the cold conditions they keep them in,” she said. “[Save the Children’s shelters] provide food, clothing, child-friendly spaces, showers, and then we also give them food and clean-clothes for their travel journeys.”Trained Save the Children staff and volunteers who know how to support the emotional recovery of the children operate the shelters, Fritzler said.Beyond facing harsh conditions when detained by border patrol, Fritzler said the people coming across the border are most likely to be fleeing for their lives. Often, refugees as young as six years old have been targeted by gangs.“If you were in the position as a parent, knowing your child is not safe and knowing you’re risking everything you’ve built up for your family to make sure that your kid can get somewhere that’s safe, you would do the same thing,” she said. “But this is not an immigration talk. These are children. At the end of the day, their basic rights and needs deserve to be met.“Children are always the innocent ones in this … and there simply aren’t enough people advocating and fighting for the rights of children.”Such unsafe environments extend to other global crises, where ISIS and other extreme terrorist groups like Boko-Haram or Al-Shabab are threatening the security of thousands of families and children, she said, making humanitarian efforts all the more imperative.Though the crisis may seem over due to the lack of media coverage, Fritzler insists it is still happening and will continue for years to come.“The crisis is not over … it’s out of the public, but it’s still happening,” she said. “I was in Texas last week down on the border and the detention centers are full. We see the critical need to be down there, and I think we will be there for a very long time.”For Saint Mary’s students, this lecture was an awakening to all of the issues that children face on a global scale and all of the humanitarian needs that must be met, senior Cathy Alcantara said.“Clearly, there’s a large humanitarian issue right in our backyard,” Alcantara said. “I knew about it over the summer because it was in the media a lot, but it hit me more hearing this lecture because it is about children.”Alcantara said she hopes she can utilize all that her Saint Mary’s education has taught her in the future and service people, like the refugee children, who need help.“I would like to help my community someday and help the children, even if it is here in the U.S.,” she said. “Right now, my whole focus is business, and I wish I had more experience with women’s studies or something to give back. I will definitely try to do more service work or something to get involved someday like Sarita.”Fritzler said everyone has a civic duty to help those around them, though this doesn’t mean we all must go to Syria to deliver aid.“I encourage everyone in college to use their skills — whether it’s in math, science, human services or education, whatever the field of study, to help those around them. That’s how we create real change in the world, by applying what we can do best, and helping those around us to do the best they can be,” she said.“That’s the true meaning of humanitarian.”Tags: American Red Cross, Catholic Charities, child protection, FEMA, human rights, Humanitarian, Sarita Fritzler, Save the Children, U.S. border crisis, U.S. border patrollast_img read more

October 18

MS Dhoni to serve in Kashmir to perform patrolling and guard duty

first_imgNew Delhi: Former Indian captain MS Dhoni will undertake duties like patrolling, guard and post duty while he serves with his battalion in Kashmir, the Army said Thursday.In a statement, the Indian Army said,”Lieutenant Colonel (Honorary) MS Dhoni is proceeding to 106 TA Battalion (Para) for being with the Battalion from 31 Jul-15 Aug 19.” The statement said that the unit will be posted in the Kashmir valley as part of Victor Force. “As requested by the officer and approved by Army Headquarters; he will be taking on the duties of patrolling, guard and post duty and would be staying with troops,” the statement said. Also Read – India gets first tranche of Swiss bank a/c details Dhoni had ruled himself out of India’s upcoming series against West Indies due to his commitments with the Territorial Army. As this piece points out, the former Indian captain will be among the few Indian cricketers to see active duty with the armed forces despite multiple cricketers receiving honorary ranks. The former Indian captain holds the honorary rank of Lieutenant Colonel in the Territorial Army unit of the Parachute Regiment (106 Para TA battalion). This is an honour he was accorded by the Army in 2011. Dhoni was given this honour along with Abhinav Bindra and Deepak Rao, a leading expert in close combat warfare. Also Read – Tourists to be allowed in J&K from Thursday In 2015, Dhoni became a qualified paratrooper after having completed five parachute training jumps in the Agra training camp. Dhoni has been seen in his Army greens on many occasions. In the recent World Cup, there was a controversy over a military logo he sported on his wicketkeeping gloves, something that the ICC objected to and was later covered. When he had been given the honorary rank in 2011, Dhoni had said, “Since childhood, I had wanted to join the Army. I used to visit the cantonment area and seeing the soldiers I used to think that one day I will also be among them.” (With inputs from Indian Express)last_img read more