Allahabad HC orders that set the bar
On Monday, January 25, the Supreme Court reminded the Uttar Pradesh government that a high court is also a constitutional court and cannot be taken lightly. The observation by Chief Justice of India SA Bobde followed a raft of significant judgments and orders delivered by the Allahabad high court when people knocked on its doors for having their fundamental rights protected.
The Allahabad high court has risen to the occasion each time, reaffirming the importance of the rights to privacy and autonomy while safeguarding civil liberties. It has set an example of how a constitutional court must act when justice delivery is an imminent necessity and not a luxury that can wait. Amid a challenging political and social atmosphere in Uttar Pradesh, the Allahabad HC has stood tall. Here are some instances in corroboration of how the high court took a stand:
Anti-CAA protesters’ posters/banners
The HC had in March 2020 taken strong exception to banners being put up by the state government to recover damages from those allegedly involved in the destruction of public property during protests against the Citizenship (Amendment) Act,or CAA, in Lucknow. The court came down heavily on the “name and shame” policy of the government and called it “undemocratic” besides an infringement of the right to privacy.
“In the present case, the cause is not about personal injury caused to the persons whose personal details are given in the banner but the injury caused to the precious constitutional value and its shameless depiction by the administration. The cause as such is undemocratic functioning of government agencies which are supposed to treat all members of the public with respect and courtesy and at all times should behave in a manner that upholds constitutional and democratic values,” a strongly worded HC order read.
Calling the state government’s move an “absolute encroachment on personal liberty,” the HC ordered the UP government to immediately remove the hoardings and submit a compliance report to the court.
Dr Kafeel Khan’s detention under the NSA Six months after he was being on one charge or another, it was in September 2020 when Kafeel Khan got off the hook with the high court quashing his detention under the National Security Act. The HC ordered his immediate release, saying the UP government had done a “selective reading” of his allegedly anti-CAA speech at the Aligarh Muslim University. It emphasised that the medical doctor had called for national integrity and not incited violence while also noting there were no grounds to impose the NSA on him and extend his detention.
“A complete reading of the speech prima facie does not disclose any effort to promote hatred or violence. It also nowhere threatens peace and tranquillity of the city of Aligarh. The address gives a call for national integrity and unity among the citizens. The speech also deprecates any kind of violence. It appears that the district magistrate had selective reading and selective mention for few phrases from the speech ignoring its true intent,” stated the HC order.
Khan has been a vocal critic of the Bharatiya Janata Party governments at the Centre and in UP.
Expresses concern over misuse of slaughter law
In October, the high court had expressed concerns over the misuse of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 to target innocent persons and lack of forensic evidence to prove that recovered meat was beef.
While granting bail to Rahmuddin, a person who had been booked for cow slaughter, the HC said: “The Act is being misused against innocent persons. Whenever any meat is recovered, it is normally shown as cow meat (beef) without getting it examined or analysed by the forensic laboratory. In most of the cases, meat is not sent for analysis. Accused persons continue to remain in jail for an offence that may not have been committed at all.”
It observed that there was a need to take care of old or nonmilking cows which are abandoned by owners if the law against the slaughter of cows is to be implemented in letter and spirit.
Right to choose life partner a fundamental right
Days before the UP government notified the anti-conversion ordinance amidst a clamour against so-called love jihad, the high court delivered a landmark verdict on the sanctity of inter-faith marriages in November 2020.
“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,” said the court, adding interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.
“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,” said the HC, as it quashed an FIR lodged by a man against his daughter’s husband, whom she married after conversion to Islam.
The court also observed that its two previous rulings against marriages performed after alleged conversions were not good in law since they failed to take into account the rights of liberty, equality and privacy.
Women have right to live on own terms
By a judgment in December, the Allahabad high court reunited a Hindu woman with her Muslim husband, underlining that “she has a choice to live her life on her own terms”. The court decided a habeas corpus plea filed by the man, who complained his wife had been sent to her parents against her wishes by the Nari Niketan or Child Welfare Committee (CWC). “As the corpus (woman) has attained the age of majority and she has a choice to live her life on her own terms and she has expressed that she wants to live with her husband, she is free to move as per her own choice without any restriction or hindrance being created by third party,” held the court in its judgment. The court also quashed an FIR registered against the man for allegedly abducting the woman.
Abuse of power in Tablighi Jamaat case
The high court was critical of the invocation of Section 307 (attempt to murder) under the Indian Penal Code against a person from Mau who had attended the Tablighi Jamaat congregation at Delhi’s Nizamuddin in March 2020.
“From a perusal of the material, charge sheeting the applicant under Section 307 IPC prima facie reflects abuse of the power of law,” said the HC as it stayed the criminal proceedings against the man concerned.
The court also directed the police officers to file personal affidavits to justify invoking Section 307 from the facts of the case.
Govt drops anti-conversion charge after HC protection In December, the high court restrained the state government from arresting a 32-year-old Muslim man from Muzaffarnagar district -- one of the first to be charged under UP’s controversial anti-conversion law. The man was charged with having an affair with the wife of a Hindu man. The court had then said: “Victim is admittedly an adult who understands her well-being. 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.”
Later, in January, the state government told the high court that the police had dropped charges against him since no evidence was found during investigation. “During investigation no evidence was found that the accused Nadeem was having any illicit relation with the woman. Further, during investigation, no evidence was found in support of the allegation that Nadeem was trying for her religious conversion as alleged by the complainant,” its affidavit stated.
Notice before interfaith marriages not mandatory Delivering yet another progressive ruling earlier this month, the high court ruled that the publication of a notice of intended marriage under the Special Marriage Act (SMA) and inviting objections was not mandatory. The court said that any additional burden in law on a couple only on account of having an inter-faith marriage would be a violation of their right to equality, dignity and privacy.
Interpreting the SMA in the backdrop of the recent Supreme Court judgments on privacy and liberty, the HC said that it shall be optional for the parties to the intended marriage to make a request in writing to the marriage officer to publish or not to publish a notice for inviting objections from the public at large.
“Making such publication mandatory would invade in the fundamental rights of liberty and privacy. It would also affect the couple’s freedom to choose marriage without interference from state and non-state actors”, held the HC.
Anti-conversion ordinance scrutiny
The high court has shown its resolve to examine the constitutionality of the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, despite repeated attempts by the state government to take away the issue from its jurisdiction. Responding to a bunch of petitions, the state government’s additional advocate general had first requested the HC not to examine the law because similar petitions were pending before the Supreme Court. But to no avail. The HC not only shot down a plea for adjournment, but it also asked the government to file its affidavit in response to the petitions in order to bring its stand on record. The UP government had to then submit its affidavit.
Getting no relief from the HC, the state government took recourse to the Supreme Court and filed a transfer petition. It requested the top court to stop the HC from scrutinising the ordinance. But this endeavour also failed. On Monday, the top court declined to entertain its transfer petition and directed the state to go before the HC on February 6 when the case will be heard next.
While it is yet to rule on the constitutional validity of the controversial ordinance against forced conversion, the Allahabad high court, by frequently stepping in to underscore the significance of fundamental rights, has undoubtedly been able to generate a sense of confidence about due legal process culminating in a justice-oriented decision.