The Gujarat government has moved the High Court seeking removal of stay imposed by the court on section 5 of the Gujarat Freedom of Religion (Amendment) Act, 2021. Section 5 of the Act penalises persons who have abetted the crime of forceful conversion.

At the August 19 hearing of a petition challenging the validity of the Act, Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav had stayed the operation of Sections 3, 4, 4A to 4C, 5, 6, and 6A of the Act. The Chief Justice had said, “After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because the marriage is solemnised by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.”

Now the state government is seeking a rectification of this order stating that section 5 has nothing to do with marriage. Advocate General Kamal Trivedi, appearing for the state submitted before the bench, “My Lords have recorded my argument, I said that per se marriage cannot be prohibited…Section 5 has nothing to do with it…It talks about whoever wants to convert have to take permission, and people have been taking permission since 2003”.

He submitted that section 5 does not use the word “marriage” and it deals with permission from the District Magistrate for conversion, either before or after marriage, or even in cases without marriage. Section 5 of the law mandates that religious priests must take prior permission from the district magistrate for converting any person from one religion to another.

The bench has granted permission to hear the case once the petitioners’ counsels are informed about it.

At the first hearing itself the bench was displeased with some provisions of the Act. “Either you say if there is marriage by force or fraudulent means and then there is conversion, then of course, it is not right, fair enough. But if you say only because of marriage, someone converts and so it is an offence (it is not correct),” the bench had said.

At the August 19 hearing, the AG had requested the Bench to clarify their position in circumstances where an interfaith marriage does result in forceful conversion, and to state that the sections should then apply. To this, the Chief Justice said, “You have to have a basic argument that its forceful conversion, either there is force or allurement….that’s all that we have said!” The court clarified that something “basic” has to be there to show that there is force or fraud or allurement in the inter-faith marriage. In the absence of this, the amended law would not apply.

On August 17, the government had argued that interfaith marriage is not prohibited under the Gujarat Freedom of Religion (Amendment) Act, 2021, however, using it as a tool or instrument for effecting forceful conversion is not allowed. The original Act of 2003 prohibited conversion by force or allurement, however the 2021 amendment makes “conversion by marriage” an offence which is one of the many common threads between the anti-conversion laws passed in Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh as well.

In related news, Citizens for Justice and Peace (CJP), SabrangIndia’s sister organisation, has also approached the Supreme Court challenging the anti-conversion laws passed by the governments of Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh, citing issues like privacy, dignity and autonomy of women, equality and secularism.

Related:

Anti-conversion law will not apply to inter-faith marriages unless there is force, fraud, allurement: Gujarat HC
Gujarat Assembly passes Freedom of Religion Amendment Bill, 2021
Gujarat’s anti-conversion law reflective of a patriarchal and prejudiced mindset: Fr. Cedric Prakash

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On August 5, Gujarat High Court issued notice in a plea challenging the Gujarat Freedom of Religion Act as amended in April 2021. After Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh, the state of Gujarat became the latest to pass its own ‘love jihad’ law to penalise religious conversion by fraudulent means including marriage.

The bench led by Chief Justice Vikram Nath and comprising Justice Biren Vaishnav, was however, not very pleased with some provisions of the law in the initial stages of hearing itself. LiveLaw reported that the bench orally remarked, “Either you say if there is marriage by force or fraudulent means and then there is conversion, then of course, it is not right, fair enough. But if you say only because of marriage, someone converts and so it is an offence (it is not correct).”

The bench opined that if an inter-religious marriage is without coercion or fraudulent means then it should not be treated as an offence. When state counsel Manisha Luvkumar contended that the object of the Act is to check that if in a relationship if one says unless you convert, there will be no marriage. To this, CJ Vikram Nath, reported responded that “it is between the two individuals”. This clearly indicated that the bench was keen on drawing a line on State interference in an individual’s privacy. Further, when the state counsel said that marriage does not require conversion, the court remarked that it is for the married couple to decide which religion they want to follow.

The original Act of 2003 prohibited forcible conversion by force or allurement, however the 2021 amendment make conversion by marriage an offence which is one of the many common threads between the anti-conversion laws passed by UP, Uttarakhand, Himachal Pradesh and Madhya Pradesh as well.

SabrangIndia’s sister organization, Citizens for Justice and Peace (CJP) has also moved the Supreme Court against the anti-conversion laws passed by UP, Uttarakhand, Himachal Pradesh and Madhya Pradesh. The petition cites detailed grounds for this challenge including issues of privacy, extra-Constitutional powers to police and non-state actors, the fact that they violate the non-negotiable tenets of secularism, equality and non-discrimination.  Both, the Act and Ordinance, are inherently anti-women and discriminate against women, giving them no agency whatsoever and are therefore bad in law and substance.

In April, the Supreme Court made a passing remark on the right of an individual to choose his religion. While dealing with a plea against black magic, superstition and mass religious conversions, the court said, “I don’t see a reason as to why any person above 18 cannot choose his religion. There is a reason why the word “propagate” is there in the Constitution”.

Related:

Did the SC passingly affirm right to choose one’s religion?
CJP moves petition against “Love Jihad” laws in SC
Intimacies of marriage private, can’t be affected by matters of faith: SC
Gujarat Assembly passes Freedom of Religion Amendment Bill, 2021    

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