TC 89_P

FIFTH IILS NATIONAL MOOT COURT COMPETITION, 2021

BEFORE THE HON’BLE SUPREME COURT OF AMPHISSA

Writ Petition No.______of 2021

SLP (Crl.) No.__________of 2021

IN THE MATTERS OF
DANIEL & ORS.
(PETITIONERS)
V.
STATE OF UPPAM PRADESH
(RESPONDENT)

MEMORIAL FILED ON BEHALF OF THE PETITIONERS

UPON THE SUBMISSION OF THE HON’BLE CHIEF JUSTICE AND

OTHER COMPANIAN JUSTICES OF THE SUPREME COURT

MOST RESPECTFULLY SUBMITTED BY THE COUNSELS

APPEARING ON BEHALF OF PETITIONERS

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS………………………………………………………………. 3
LIST OF AUTHORITIES………………………………………………………………….. 4
STATEMENT OF JURISDICTION……………………………………………………… 8
STATEMENT OF FACTS…………………………………………………………………. 9
ISSUES FOR CONSIDERATION…………………………………………………………11
SUMMARY OF ARGUMENTS……………………………………………………........... 12
BODY OF ARGUMENTS…………………………………………………………………. 14

1. Whether the writ petition filed under Art. 32 of the constitution against
Uppam Pradesh Prohibition of Unlawful Religious Conversion Ordinance,
2020 and SLP filed under Art. 136 of the constitution for granting bail under
Sec. 498A are maintainable in this Hon’ble Court of Justice?

2. Whether Uppam Pradesh Prohibition of Unlawful Religious Conversion

Ordinance, 2020 is valid?

3. Whether the petitioners ought to have been granted bail by the learned
Magistrate?

PRAYER………………………………………………………………………28

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 LIST OF ABBREVIATIONS

ABBREVIATIONS TERMS

& And

Anr. Another

APC Amphissan Penal Code

Art. Article

CrPC Code of Criminal Procedure

DM District Magistrate

Eg. Example

Etc. Et cetera

Govt. Government

Hon’ble Honourable

i.e. That is

Ors. Others

SC Supreme Court

Sec. Section

SLP Special Leave Petition

UP Uppam Pradesh

V. Versus

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 INDEX OF AUTHORITY

TABLE OF CASES:
S. NO. CASE TITLE CITATION
1. Andhra Industrial Works v. Chief Controller E & I (1974) 2 S.C.C. 348.

2. Anuj Garg v. Hotel Assn. of India. [(2008) 3 SCC 1] (SCC p. 15, paras
34-35)

3. Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297

4. Associated Cement Companies Ltd v. P.N. Sharma (1965) 2 SCR 366

5. Bandhua Mukti Morcha v. Union of India A.I.R. (1984) S.C. 802

6. Chairman v. T.K. Raju. A.I.R. (2006) S.C. 3504

7. D.A.V College v. State of Punjab (1971) S.C.C. 261.

8. Dale & Carrington Investment Ltd. v. P.K. (2005) 1 SCC 212.

Prathapan.

9. Daryao v. The State of Uttar Pradesh A.I.R. (1961) S.C. 1457

10. Delhi Judicial Service Assn. v. State of Gujarat (1991) 4 SCC 406

11. Durga Shankar Mehta v. Thakur Raghuraj Singh AIR 1954 SC 520
and Ors.

12. E.P Royappa v. State of Tamil Nadu A.I.R. (1974) S.C. 555.

13. Fertilizer Corp. Kamgar Union v. Union of India A.I.R. (1981) S.C. 344.

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14. Garg v. Union of India A.I.R (1981) S.C. 2138.

15. Gobind v State of Madhya Pradesh. (1975) 2 SCC 148.

16. Gopal Das v. Union of India A.I.R (1955) S.C. 1.

17. Jai Prakash Singh v. State of Bihar AIR 2012 SC 1676:2012 Cr LJ

210: 2012 AIR SCW 208

18. Jose Da Costa and Anr. v. Bascora Sadasiva Sinai (1976) 2 SCC 917
Narcornim and Ors.

19. K.A. Abbas v. Union of India A.I.R. (1971) S.C. 48.

20. Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7SCC 21: AIR 2004 SC
1866.

21. Kartar Singh v. State of Punjab (1994) 3 S.C.C. 569.

22. KS Puttaswamy V. Union of India 25 (2017) 10 SCC 1.

23. Mahipal v. Rajesh Kumar (2020) 2 SCC 118

24. Manju Ram Kalita v State of Assam (2009) 1 3Scc 330

25. Om Parkash Tilak Chand vs The State AIR 1959 P H 134, 1959 CriLJ 368

26. P.S.R. Sadhanantham v. Arunachalam and Anr. (1980) 3 SCC 141

27. Preeti Gupta V. State of Jharkhand (2010) 7 SCC 667

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28. Prem Chand Garg v. Excise Commissioner A.I.R. (1963) S.C. 996.

29. Pritam Singh v. State AIR 1950 SC 169

30. Rajesh Sharma & Ors. v. State of UP and Anr 2017 SCC SC 821

31. Ram Jethmalani v Union of India CIVIL ORIGINAL

JURISDICTION WRIT PETITION
(CIVIL) NO. 176 OF 2009

32. Ram Krishna Dalmia v. Mr. Justice S.R. Tendolkar A.I.R. (1958) S.C. 538.

33. S. Hanumantha Rao v. S. Ramani Civil Appeal No. 3763 of 1995.

34. S. Seshachalam v. Chairman Bar Council of Tamil A.I.R. (2015) S.C. 816
Nadu

35. Safiya sultana vs state of UP 27 Habeas corpus no.16907 of 2020

36. Salamat Ansari Vs Sate of UP Cri. Misc. W.P No. 11367 of 2020.

37. Shafin Jahan v. Asokan KM AIR 2018 SC 357

38. Shreya Singhal v. Union of India A.I.R (2015) S.C. 1523.

39. Sir Chunilal Mehta and Sons. Ltd. v. Century AIR 1962 SC 1314.
Spinning and Manufacturing Co. Ltd.

40. Soni Gerry v. Gerry Douglas 24 (2018) 2 SCC 197.

41. State of Uttarkhand v Azam, Government Appeal No. 12 of

2011.

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42. State of West Bengal v. Anwar Ali Sarkar A.I.R. (1952) S.C. 75.

43. Sushil Kumar Sharma v. Union of India35 AIR 2005 SC 3100

44. Thimmappa v. Central Board of Directors A.I.R. (2001) S.C. 467.

45. Tilokchand Motichand v. H.B. Munshi A.I.R. (1970) S.C. 898.

46. Union Carbide Corporation and Ors. v. Union of (1991) 4 SCC 584.
India and Ors.

BOOKS REFERRED:
1. Constitutional Law of India, 57th edition (J.N. Pandey)

STATUTES REFERRED:
• Epidemic Diseases Act, 1897
• Indian Penal Code, 1860
• Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020
• Special Marriage Act, 1956
• Code of Criminal Procedure, 1973

WEBSITES REFERRED:
1. www.legalserviceindia.com
2. www.indiakanoon.org
3. www.scconline.in
4. www.manupatra.com

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 STATEMENT OF JURISDICTION

The petitioners have approached this Hon’ble Supreme Court of Amphissa under Art. 32 of
the constitution contending the constitutional validity of the Uppam Pradesh Prohibition of
Unlawful Religious Conversion Ordinance, 2020. The petitioners requests this Hon’ble SC
to deem the maintainability of this suit.

The petitioners have also approached this Hon’ble SC of Amphissa under Art. 136 of the
Constitution to appeal against the denial of bail by the learned Magistrate. The petitioners
requests this Hon’ble court of justice to admit the SLP at admission stage.

The present memorandum sets forth the facts, contentions and arguments in the present case.

All of which is respectfully submitted.

By:
Counsels for the petitioners

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 STATEMENT OF FACTS

ABOUT THE UP ORDINANCE:

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. The Uppam Pradesh state cabinet cleared the
ordinance on 20th November, 2020 following which it was approved and signed by state
Governor on 24th November, 2020.
The Uppam Pradesh ordinance makes conversion non-bailable with up to 10 years of jail time
if undertaken through misinformation, unlawfully, forcefully, allurement or other allegedly
fraudulent means and requires that religious conversions for marriage in Uppam Pradesh to
be approved by a district magistrate. The law also encompasses strict action for mass
conversion, including cancellation of registration of social organization involve in mass
religious conversion.

EVENTS BETWEEN PRABHA AND DANIEL:

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.
On the other hand, Daniel’s family begrudgingly accepted their marriage. Prabha decided to
convert to Islam, out of her love and respect for Daniel’s family and faith and hoping that his
family would be more willing to accept their marriage if she undertakes such a gesture.
However, it was decided that Prabha’s conversion would be kept as a secret from her parents.
The marriage occurred on 10thJanuary, 2021. After the marriage the couple shifted into a
separate apartment of their own in Jallabad where they happily resided for 2 months. On
11th March, they decided to visit Daniel’s home in Lunnow. Upon their arrival, they were
greeted warmly by his family.

Cases of Covid were steadily rising within the State and on 15th March, a two-week
lockdown was announced in the state. In the midst of this, Prabha’s younger brother fell
down from stairs and was put to bed-rest. Prabha strongly wished to visit him several times

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but Daniel’s family did not allow her to go during due to limited transportation options and
on an apprehension, that Prabha may contract Covid-19 while travelling in such a risky
situation. Prabha had requested many times to Daniel and her in-laws to allow her to meet her
brother but they did not permit her to leave. Prabha started feeling like a prisoner in the house
of her own in-laws.
Being frustrated, after 2 months, Prabha called up her parents and asked them to pick her up.
Her family became extremely angry on hearing the circumstances. Upon knowing about the
details of their marriage and the conversion, they suspected that Daniel and his family had
forced Prabha to convert into a different religion and were now forcefully restraining her
against her will.

CASE FILED BY PRABHA'S PARENTS:

They 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 went and filed an FIR in Rainbow Police
Station against Daniel’s family under Section 498A APC, section 340 of APC as well as
under the Uppam Pradesh Anti-Conversion Act. Information was sent to Bajna police station
situated near the residence of Daniel’s family, and soon, his family members were arrested on
20th May 2021.

PETITIONS FILED BY DANIEL AND HIS FAMILY:

The learned 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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 ISSUES FOR CONSIDERATION

1. Whether the writ petition filed under Art. 32 of the constitution against Uppam Pradesh
Prohibition of Unlawful Religious Conversion Ordinance, 2020 and SLP filed under
Art. 136 of the constitution for granting bail under Sec. 498A are maintainable in this
Hon’ble Court of Justice?

2. Whether Uppam Pradesh Prohibition of Unlawful Religious Conversion Ordinance,

2020 is valid?

3. Whether the petitioners ought to have been granted bail by the learned Magistrate?

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 SUMMARY OF ARGUMENTS

1. Whether the writ petition filed under Art. 32 of the constitution against Uppam
Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 and SLP filed
under Art. 136 of the constitution for granting bail under Sec. 498A are maintainable in
this hon’ble court of justice?

It is humbly submitted before the Hon’ble Supreme Court of Amphissa that Uppam Pradesh
Prohibition of Unlawful Religious Conversion Ordinance, 2020 is not valid and violates
the fundamental rights of Art. 14, 21 and 25 of the constitution guaranteed to the citizens of
the country making the writ petition filed under Art. 32 maintainable. The SLP filed under
Art. 136 of the constitution is maintainable as there is a substantial question of law as the
prima facie case is not made because the victim’s parents filed a case in suspicion of it to be a
case of ‘love jihad’. There was no actual evidence or proof directly associating with the
petitioners and hence making them eligible for bail for a non-bailable offense under Sec 437
of CrPC. The learned DM denied bail to the petitioners without providing any proper reason
for the denial of bail.

2. Whether Uppam Pradesh Prohibition of Unlawful Religious Conversion Ordinance,

2020 is constitutionally valid?

It is humbly submitted before the Hon’ble SC that Uppam Pradesh Prohibition of

Unlawful Religious Conversion Ordinance, 2020 is not valid as there is infringement of
fundamental rights of Art. 14 which provides equality of law and equal protection of law
within the territory of India, Art. 21, which provides protection of life and personal liberty
and Art. 25, which provides freedom of conscience and free profession, practice and
propagation of religion.

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3. Whether the petitioners ought to have been granted bail by the learned Magistrate?

It is humbly submitted before the Hon’ble Supreme Court of Amphissa that the petitioners
ought to have been granted bail under Sec 437 of CrPC. The learned Magistrate did not
furnish proper reasons for denying the bail for the petitioners. The learned Magistrate denied
bail to the petitioners without any proper evidence or proof and without any prima facie case
made from the petitioners’ action. Proper investigation was not conducted before arresting
the petitioners on the charges laid down under Sec 498A and Sec 340 of the APC.

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 BODY OF ARGUMENTS

1. Whether the writ petition filed under Art. 32 of the constitution against Uppam
Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 and SLP filed
under Art. 136 of the constitution for granting bail under Sec. 498A are maintainable in
this hon’ble court of justice?

1) It is humbly submitted before the Hon’ble Supreme Court of Amphissa that the writ
petition filed under Art. 32 of the constitution is maintainable as there is clear violation or
infringement of the fundamental rights of people and the SLP filed under Art. 136 of the
constitution is maintainable as there is a substantial question of law and gross injustice with
the Sec. 498A of the APC.

1.1 the writ petition can be filed under Art. 32 for the violation of the fundamental
rights.

2) The writ petition filed by the petitioners under Art. 32 of the constitution is maintainable.
Under Art. 32 of the constitution, a person can file a writ petition in the Supreme Court for
the violation of his/her fundamental rights1. The fundamental right of right to equality (Art.
14), right to life and personal liberty (Art.21), right to freedom of conscience and free
profession and propagation of religion (Art. 25) are violated by the UP Prohibition of
Unlawful Religious Conversion Ordinance 2020. Art. 32 can be invoked when there is a
threat for violation of Fundamental Right & the petitioner need not wait till the actual
violation takes place.2 The Fundamental Right should either be violated or threatened
imminently the violation may be actual or potential & the aggrieved party has the right to file
the petition under Art. 32 of the Constitution.3

3) It is humbly submitted that the violation of Fundamental Right is the sine qua non of the
exercise of the right conferred by Art. 32.4 It is indeed certain that the jurisdiction of the
Supreme Court under Art. 32 can be invoked only when Fundamental Right has been
infringed.5

1 Bandhua Mukti Morcha v. Union of India, A.I.R. (1984) S.C. 802.

2 D.A.V College v. State of Punjab, (1971) S.C.C. 261.
3 Andhra Industrial Works v. Chief Controller E & I, (1974) 2 S.C.C. 348.
4 Fertilizer Corp. Kamgar Union v. Union of India, A.I.R. (1981) S.C. 344.
5 Gopal Das v. Union of India, A.I.R (1955) S.C. 1.

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4) It is humbly submitted that the right to approach this Hon'ble Court in case of violation of
fundamental rights is itself a fundamental right enshrined in Art. 32. This right is absolute
and may not be impaired on any ground.6 Unlike in Art. 226, the remedy provided by Art. 32
is a fundamental right and not merely a discretionary power of the Court.7

1.2 The SLP filed under the Art. 136 of the constitution is maintainable.

5) It is humbly submitted before the Hon’ble Supreme Court of Amphissa that the SLP filed
under the Art. 136 of the constitution is maintainable. Art. 136 vests the Supreme Court of
Amphissa, the apex court of the country, with a special power to grant special leave, to
appeal against any judgment or order or decree in any matter or cause, passed or made by any
Court/tribunal in the territory of India. It is humbly submitted that powers under Art. 136 is
unfettered.8

6) Where findings are entered without considering relevant materials and without following
proper legal procedure, the interference of the Supreme Court is called for.9 It is to be used in
case any substantial constitutional question of law is involved, or gross injustice has been
done. A Constitutional Bench of the Apex Court, while explaining the importance of the said
expression, observed that: “The proper test for determining whether a question of law raised
in the case is substantial, would, in our opinion, be whether it is of general public importance
or whether it directly and substantially affects the rights of the parties and if so whether it is
either an open question in the sense that it is not finally settled by this Court or by the Privy
Council or by the Federal Court or is not free from difficulty or calls for discussion of
alternative views.”10

6 Prem Chand Garg v. Excise Commissioner, A.I.R. (1963) S.C. 996.

7 Daryao v. The State of Uttar Pradesh, A.I.R. (1961) S.C. 1457; Tilokchand Motichand v. H.B. Munshi, A.I.R.
(1970) S.C. 898.
8 Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors. AIR 1954 SC 520; Associated Cement Companies
Ltd v. P.N. Sharma (1965) 2 SCR 366; Jose Da Costa and Anr. v. Bascora Sadasiva Sinai Narcornim and Ors.
(1976) 2 SCC 917; Arunachalam v. P.S.R. Sadhanantham and Anr. (1979) (2) SCC 297; P.S.R. Sadhanantham
v. Arunachalam and Anr. (1980) 3 SCC 141; Union Carbide Corporation and Ors. v. Union of India and Ors.
(1991) 4 SCC 584.
9 Dale & Carrington Investment Ltd. v. P.K. Prathapan (2005) 1 SCC 212.
10 Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.

15
7) Where an order refusing or granting bail does not furnish the reasons that inform the
decision, there is a presumption of the non-application of mind which may require the
intervention of this Court.11 In the instant case, the learned Magistrate did not furnish any
details for not granting bail and hence the intervention of this court is necessary. In the instant
case., the prima facie case is not made and therefore, making the petitioners eligible for a bail
under a non-bailable offense according to the provision laid down by Sec. 437 of CrPC, 1973.

8) In Delhi Judicial Service Assn. v. State of Gujarat,12 the Supreme Court has held that
under Art. 136 the SC has wide power to interfere and correct the judgment and order passed
by any court or tribunal in India. Art. 136 uses the wording in ‘any case or matter’13 This
gives widest power to this court to deal with any cause or matter, even if it involves question
of fact.

11 Mahipal v. Rajesh Kumar, (2020) 2 SCC 118

12 (1991) 4 SCC 406
13 Pritam Singh v. State, AIR 1950 SC 169

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2. Whether Uppam Pradesh Prohibition of Unlawful Religious Conversion Ordinance,
2020 is constitutionally valid?

9) It is humbly submitted before the Hon’ble Supreme Court of Amphissa that the Uppam
Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 is not
constitutionally valid as it violates several fundamental rights of the people.

2.1 The UP Prohibition of Unlawful Religious Conversion Ordinance, 2020 violates Art.
14 of the constitution.

10) It is humbly submitted that the impugned ordinance is clearly in violation of the
principles of Art. 14 as the provisions of the ordinance are vague, ambiguous and arbitrary.
The Anti-Conversion law violates Art 14 of the constitution as there is no intelligible
differentia as there is unreasonable classification. In the case of Ram Krishna Dalmia v. Mr.
Justice S.R.Tendolkar,14 it was observed that, In order to pass the test for permissible
classification two conditions must be fulfilled, namely- The classification must be founded on
an intelligible differentia which distinguishes persons or things that are grouped together
from others left out of the group the differentia must have a rational relation to the object
sought to be achieved by the statute in question.15 The classification, however, must not be
―arbitrary, artificial, or evasive but must be based on some real and substantial distinction
bearing a just and reasonable relation to the object sought to be achieved by the legislation. 16
In the absence of a just cause to the classification, the classification is deemed discriminatory
and ex facie are in violation of Art.14.17

11) The ordinance nulls and makes conversion for the sole purpose of marriage illegal. If a
person wishes to convert to his or her spouse’s religion for their marriage, it is termed as
illegal and void by the ordinance. Even if the individual wishes to convert to his/her spouse’s
religion with love and respect and with their own discretion, it is not possible under this
ordinance. There is also no rational nexus to this ordinance as the primary object of the
ordinance is to prohibit unlawful religious conversion whereas, the procedure established by
the ordinance even prohibits lawful religious conversion during marriages.

14 Ram Krishna Dalmia v. Mr. Justice S.R. Tendolkar, A.I.R. (1958) S.C. 538.
15 Thimmappa v. Central Board of Directors, A.I.R. (2001) S.C. 467.
16 S. Seshachalam v. Chairman Bar Council of Tamil Nadu, A.I.R. (2015) S.C. 816; Garg v. Union of India,
A.I.R (1981) S.C. 2138.
17 State of West Bengal v. Anwar Ali Sarkar, A.I.R. (1952) S.C. 75.

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12) The ordinance gives utmost power to the govt. officials and DM to examine and
investigate a case filed under this ordinance which often leads to misuse of power, for
example not granting bail in accordance with Sec 437 of CrPC or not conducting proper
investigation of the conversion. The whole ordinance is arbitrary is nature as it is not seeming
to be based on any reason or plan and sometimes seeming unfair.

13) It is humbly submitted that an authority must not act illegally, irrationally or arbitrarily.
Any such illegal, irrational or arbitrary actions whether in the nature of legislative,
administrative or quasi-judicial exercise of power is liable to be quashed being violative of
Art.14.18 The provisions of the act in question are arbitrary and hence violative of Art.14,
thereby it can be reviewed under Art.13 that provides for judicial review. A law that is made
in contravention of fundamental rights is void ab initio. The provisions or procedures of the
ordinance are very vague and is a fairly settled principle of law that when a penal provision is
vague, it denies the equal protection of laws guaranteed under Art. 1419.

2.2 The ordinance violates Art. 21 of the constitution.

14) The right to life enshrined in Article 21 has been liberally interpreted so as to mean
something more than mere survival and mere existence or animal existence 20. It therefore
includes all those aspects of life which makes a man’s life more meaningful, complete and
worth living and right to privacy is one such right.
15) Justice Mathew held that, “Any right to privacy must encompass and protect the personal
intimacies of the home, the family, marriage, motherhood, procreation and child rearing.
This catalogue approach to the question is obviously not as instructive as it does not give
an analytical picture of the distinctive characteristics of the right of privacy. Perhaps, the
only suggestion that can be offered as unifying principle underlying the concept has been
the assertion that a claimed right must be a fundamental right implicit in the concept of
ordered liberty.”21 In Ram Jethmalani v Union of India22: “Right to privacy is an integral part
of right to life. It also includes the responsibility of the State to uphold them against the actions
of others in the society, even in the context of exercise of fundamental rights by those others.”

18 E.P Royappa v. State of Tamil Nadu, A.I.R. (1974) S.C. 555.

19 Chairman v. T.K. Raju, A.I.R. (2006) S.C. 3504.
20 State of uttarkhand v azam, Government Appeal No. 12 of 2011.
21 Gobind v State of Madhya Pradesh (1975) 2 SCC 148.
22 Ram Jethmalani v Union of India, CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 176
OF 2009; Anuj Garg v. Hotel Assn. of India [(2008) 3 SCC 1] (SCC p. 15, paras 34-35)

18
16) In the case of Salamat Ansari Vs Sate of UP23, the court said that marriage is a matter of
choice, and every adult woman has a fundamental right to choose her own partner.
Furthermore, the court added that the Constitution was violated every time the state interfered
in intimate and personal issues. In what could be considered a show of strength, the court
stated that it did not see Priyanka Kharwar and Salamat Ansari as Hindu and Muslim, but
instead as two grown-up individuals who out of their own free will and choice were living
together peacefully and happily over a year. This was on the logic that, 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. The court further held that an
individual’s right to live with a person of their choice irrespective of religion professed by
them or their partner is for all purposes central to the right to life and personal liberty.

17) The Uppam Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020
clearly violates a person’s right to life and personal liberty guaranteed under Art. 21 of the
constitution. Regulating conversion should not be made legal in this country of Amphissa as
conversion of religion or adoption of another religion solely depends on the person who is
converting, and he/she need not give any reason for their conversion.

18) In a more recent case of a three Judge Bench in Soni Gerry v. Gerry Douglas24 it is
rightly stated that: It needs no special emphasis to state that attaining the age of majority in an
individual's life has its own significance. She/he is entitled to make her/his choice. A major
point that is to be noted is the fact that Prabha had converted to the Islam religion out of her
will and out of respect and faith for the religion and hoped that the petitioner Daniel’s parents
would be more willing to accept the marriage if she did convert.

19) The ordinance violates the personal liberty and privacy of an individual. This Hon’ble
court in the case of KS Puttaswamy V. Union of India25 case on the right to privacy said, “the
autonomy of the individual is the ability to make decision on vital matters of concerned to
live”. Marriage is an extremely personal affair. The right to marry a person of one’s choice or
to choose one’s partner is an aspect of constitutional liberty as well as privacy.

23 Cri. Misc. W.P No. 11367 of 2020.

24 (2018) 2 SCC 197.
25 (2017) 10 SCC 1.

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20) In 2018, the SC reiterated and reinforced this position of law in the case Shafin Jahan v.
Asokan KM 26, commonly known as Hadiya Case where it rejected the allegation that Hadiya
had been forcefully converted to another religion for the purpose of marriage. It held: ‘How
Hadiya chooses to lead her life is entirely a matter of her choice’. Furthermore, the
constitutional framework does not allow social approval as a basis for recognizing personal
decisions.

21) Given the conservative nature of the society, intercommunity marriages are discouraged,
often even leading to honour killings. In such circumstances, when it is against family or
societal approval, it becomes difficult for interfaith couples to marry even under the Special
Marriage Act, 1956 – a law for interfaith marriages. The mandatory 30 – day notice period to
raise objections to a proposed marriage under the Special Marriage Act might result in
harassment of the couple by family members or even goons, who are opposed to their
marriage. This was also reiterated in the case of Safiya sultana vs state of UP27. To avoid
such harassment, couples may opt to convert to their partner’s religion to get married under
the Special Marriage Act without the 30 – day waiting period. Similarly, the Uppam Pradesh
Prohibition of Unlawful Religious Conversion Ordinance 2020 requires individuals who are
willing to convert to give a declaration to the DM before 60 days of conversion which might
result in the harassment of the person undergoing the conversion.

22) According to Sec 9(2) of the ordinance, the declaration submitted by both the converter
and the person being converted should be made public by the district magistrate inviting any
opposition to the conversion. The information publicised by the DM contains personal
information about the person being converted such as the name/address of the person, the
religion he has opted to change etc. This is a gross violation of privacy as the right to
publicise such personal information remains with the person who opts to be converted. Any
person willing to convert to another religion in the state of Uppam Pradesh are left with no
choice other than converting through the ordinance and publicising their personal
information.

26 AIR 2018 SC 357

27 Habeas corpus no.16907 of 2020

20
2.3 The ordinance violates Art. 25 of the constitution.

23) Art. 25 of the constitution provides freedom of conscience and freedom of profession,
practice and propagation of religion. Every citizen of this country can invoke Art. 25 of the
constitution in the way of having the freedom to practice or profess of his/her choice. Anti-
conversion laws already face criticism for being “extraordinarily broad and vague”. Many of
the terms used in the Uttar Pradesh Ordinance—“allurement”, “force”, “misrepresentation”,
“fraudulent”— are not proven to be in force in this case and have been previously criticized
for being overly broad for their potential to interfere with the right to ‘propagate’ religion, a
right constitutionally recognised as part of the freedom of religion under article 25 of the
constitution which provides that all persons are equally entitled to freedom of conscience and
the right freely to profess, practice and propagate religion. Even giving a religious book to
someone from a different religion can be counted as “allurement through a gift” under this
ordinance.
24) It is humbly submitted that it is a basic principle of due process that an enactment is void
for vagueness if its prohibitions are not clearly defined.28 Vague laws offend several
important values.29 A legislation must not be so vague, the language so loose, as to leave to
those who have to apply it too wide a discretion for sweeping within its condemnation. 30

28 Shreya Singhal v. Union of India, A.I.R (2015) S.C. 1523.

29 Kartar Singh v. State of Punjab (1994) 3 S.C.C. 569.
30 K.A. Abbas v. Union of India, A.I.R. (1971) S.C. 48.

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3. Whether the petitioners ought to have received bail by the learned Magistrate?

25) It is humbly submitted before the Hon’ble SC that the petitioners ought to have receive
bail from the learned Magistrate as no prima facie case was made because the victim’s
parents filed a case in suspicion of the conduct of the petitioners to be a case of ‘love jihad’,
there was no actual proof or evidence directly associating the petitioners with the alleged
crimes committed by them and hence making the petitioners eligible for bail for a non-
bailable offense under Sec 437 of CrPC. Where an order refusing or granting bail does not
furnish the reasons that inform the decision, there is a presumption of the non-application of
mind which may require the intervention of this Court.31 The learned DM did not provide any
proper reason for denying bail.

3.2 Sec 498A of APC

26) Husband or relative of husband of a woman subjecting her to cruelty -- Whoever, being
the husband or the relative of the husband of a woman, subjects such woman to cruelty shall
be punished with imprisonment for a term which may extend to three years and shall also be
liable to fine. For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical)
of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for any property or valuable security or is
on account of failure by her or any person related to her to meet such demand.
In this instant case, there is no infliction of cruelty by Daniel and his family towards the
victim Prabha.

27) There is no act of cruelty done by Daniel against his wife Prabha as she was only
restricted from visiting her brother due to increase in the number of COVID cases in the state
and due to the limitation of transport facilities and on the apprehension that Prabha might
contract COVID-19 while travelling in such a risky situation. So, the act of Daniel was with
good intention only to safeguard and protect his wife and his family.

31 ibid 11

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28) In the cases of Manju Ram Kalita v State of Assam32 & that of S. Hanumantha Rao v. S.
Ramani33, this Court considered the meaning of cruelty in and observed that "mental cruelty
broadly means, when either party causes mental pain, agony or suffering of such a magnitude
that it severs the bond between the wife and husband and as a result of which it becomes
impossible for the party who has suffered to live with the other party. In other words, the
party who has committed wrong is not expected to live with the other party." It is to be
highlighted that Daniel disapproving her to step out of the house clearly does not amount to
mental cruelty because of the lockdown restrictions and cannot be linked to Section 498A
either. The fact that Daniel has been alleged on the basis of Section 498A despite the lack of
harassment is a clear proof that the Section has been misused.

29) The lawmakers designed and inserted section 498A into the legal framework with the
idea of protecting women against cruelty, harassment, and other offenses. But when the cross
investigations are performed to check the viability of these provisions, the number of
acquittals was more in comparison to the convictions. Therefore, one who has brought 498A
into action envisaging it as a shield to the women against cruelty i.e., Supreme Court, is now
considering it as legal terrorism. The misuse of the Sec 498A affects the actual credibility of
the law. Though there are widespread complaints and even the judiciary has taken cognizance
of large-scale misuse, there is no reliable data based on the empirical study as regards the
extent of the alleged misuse.

30) The Supreme Court of India in Preeti Gupta V. State of Jharkhand34 decided in 2010,
observed that a serious relook of the provision is warranted by the Legislature and said: “It is
a matter of common knowledge that exaggerated versions of the incidents are reflected in a
large number of complaints”.

31) Similarly, in this case the incident of Prabha being restricted from visiting her brother
was an exaggerated event for causing cruelty to Prabha. In fact, it was just an act of love and
affection by Daniel to safeguard his wife from COVID-19.

32 (2009) 1 3Scc 330

33 Civil Appeal No. 3763 of 1995.
34 (2010) 7 SCC 667

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32) In 2005, in Sushil Kumar Sharma v. Union of India35, the Supreme Court observed that
complaints under section 498A of the Indian Penal Code (IPC) were being filed on the basis
of personal vendetta - "by misuse of the provision, a new legal terrorism can be unleashed."
It also observed in the judgment that the legislature should find out ways in which the makers
of frivolous complaints can be appropriately dealt with.
33) In 2017, Rajesh Sharma & Ors. v. State of UP and Anr.36, the Supreme Court did the
unthinkable. It passed a directive to police and magistrates that there would be no automatic
arrests or coercive actions arising out of complaints lodged under section 498A without
ascertaining the veracity of the complaints.

34) A bench consisting of justices AK Goel and UU Lalit stated that there was a growing
pattern of cases wherein the women were abusing the legal provision to implicate their
husbands and his relatives — parents, minor children, grandparents and siblings — in
criminal cases on the basis of malicious or frivolous complaints. The bench stated that there
was "violation of human rights of innocents".

35) The verification of the complaints shall be carried out by a special police officer and a
district-level Family Welfare Committee which will preferably comprise of three members,
who can be "paralegal volunteers/social workers/retired persons/wives of working
officers/other citizens who may be found suitable and willing". The court, however, assured
that grave physical injury or death of the aggrieved would have exceptions to this directive.

36) The main issue brought up by the amicus curiae was whether there was a mandate to
check the provision’s reach when it came to roping in all family members to settle a
matrimonial dispute and cruelty under section 498A. In the course of the case, data from the
National Crime Records Bureau (NCRB) was used to indicate that the legal provision is
being consistently misused by women.

35 AIR 2005 SC 3100

36 2017 SCC SC 821

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37) In the instant case, there was an automatic arrest of Daniel and his family under Sec.
498A. There was no mention of any special police officers or District level Family Welfare
Committee to investigate under Sec 498A and therefore making the arrest of Daniel and his
family not valid. The time between the arrest of Daniel and his family members and lodging a
complaint with the Rainbow Police Station is approximately about five days which gives very
small room to conduct a thorough investigation of the situation.

3.2 Sec 340 of APC.

38) Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.

39) A lockdown is a restriction policy for people or community to stay where they are,
usually due to specific risks to themselves or to others if they can move and interact
freely. Those violating the lockdown orders can face legal action under the Epidemic
Diseases Act, 1897, which lays down punishment as per Sec 188 of the APC for flouting
such orders.

40) Sec 188 of APC states that Whoever, knowing that, by an order promulgated by a public
servant lawfully empowered to promulgate such order, he is directed to abstain from a certain
act, or to take certain order with certain property in his possession or under his management,
disobeys such direction, shall, if such disobedience causes or tends to cause obstruction,
annoyance or injury, or risk of obstruction, annoyance or injury, to any persons lawfully
employed, be punished with simple imprisonment for a term which may extend to one month
or with fine which may extend to two hundred rupees, or with both; and if such disobedience
causes or tends to cause danger to human life, health or safety, or causes or tends to cause a
riot or affray, shall be punished with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or with both.

41) In this instant case, Daniel restricted Prabha from visiting her brother to safeguard her
from contracting the virus and protect her from committing a crime of violating the lockdown
imposed by the govt. officials.

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42) In the case of Om Parkash Tilak Chand vs The State37, The Additional Sessions Judge
giving benefit of doubt acquitted the accused of the charge under Section 342, Indian Penal
Code. He found that the woman's movements were restricted to a certain extent but from the
evidence on the record he did not feel justified in drawing an inference, that she was
wrongfully confined within the contemplation of Section 342, Indian Penal Code.

43) He arrived at this decision because there was evidence that the woman went up-stairs and
the gestures she made to people in the neighbouring houses presupposed to a certain extent
the freedom of movement.

44) Taking this case’s decision, it is safe to say that the alleged wrongful confinement in this
case does not satisfy any of the above- mentioned situations. Prabha had a clear freedom of
movement and the restriction that she felt was only due to increasing spread of the virus and
the lockdown that was put in place.

45) The learned DM came to a conclusion of denying the bail to the petitioners even before
the govt. executives properly investigated the charges against the petitioners properly and
denied bail without giving any proper reason for denial.

46) The counsel of the petitioners humbly submits that before refusing bail in non-bailable
offences the court must from every side of the case should analyse the following factor with
complete caution and acute sense of judgement. Arrest should be the last option and that too
when there is no room left for the judge to grant bail. 38 The factors that can be taken into
consideration is as follows:

• The nature and gravity of the accusation and the exact role of the accused must be
properly comprehended before arrest is made.
• The antecedents of the applicant including the fact as to whether the accused has
previously undergone imprisonment by conviction on Court in respect of any
cognizable offence.

37 AIR 1959 P H 134, 1959 CriLJ 368

38 Jai Prakash Singh v. State of Bihar, AIR 2012 SC 1676:2012 Cr LJ 210: 2012 AIR SCW 208

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 • The possibility of the applicant to flee from justice.
• The possibility of the accuser’s likelihood to repeat similar or the other offences.
• Where the case has been made only with the object of injuring or humiliating the
applicant by arresting him or her.

If there is not any possibility of the above-mentioned consideration by the court, then there is
no point retaining a person in jail. the vague allegation that the accused may tamper with the
evidence or witnesses may not be a ground to refuse bail, if the accused is of such a character
that his mere presence at large would intimidate the witnesses or if there is material to show
that he uses his liberty to subvert justice or tamper with the evidence, then bail may be
refused.39 But none of these conditions satisfy in the instant case.

39 Kalyan Chandra Sarkar v. Rajesh Ranjan,(2004) 7SCC 21:AIR 2004 SC 1866.

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 PRAYER

Therefore, in the light of the facts stated, evidence adduced, arguments advanced and
authorities cited, the Counsels for the petitioners humbly pray and implore before this
Hon’ble Court to adjudge and declare:

1. To hold writ petition filed by the petitioners under Art. 32 of the constitution is
maintainable by this Hon’ble Court of Justice.
2. To declare the UP Prohibition of Unlawful Religious Conversion Ordinance, 2020
as unconstitutional and hence liable to be struck down.
3. To admit the SLP filed by the petitioners under Art. 136 of the constitution in the
admission stage and allow the same holding that the petitioners ought to have been
granted.

We humbly plead, the Hon’ble Court to pass any other orders in the light of justice, equity
and good conscience.

AND FOR THIS ACT OF KINDNESS THE PETITIONERS SHALL DUTY BOUND
FOREVER PRAY

Respectfully submitted,

S/d_________________________

(Counsel for petitioners)

Place:

Date:

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