The Gujarat High Court has refused to allow the state government’s plea seeking removal of stay on operation of section 5 of the Gujarat Freedom Of Religion (Amendment) Act, 2021. 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. 

After hearing the arguments of the AG Kamal Trivedi, the division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav said, “We do not find any reason to make any changes in the order passed by us on August 19”. Trivedi had argued that section 5 was a part of the original unamended Act of 2003 and it has nothing to do with marriage per se. Trivedi 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.

Senior advocate Mihir Joshi appearing for the petitioner argued that if the stay on section 5 is lifted, then the court’s entire order won’t operate and it will become unenforceable. He also argued that if somebody wants to get married the presumption is that it is unlawful unless permission is taken under section 5.

“Today if I want to convert voluntarily without any allurement or force, or any fraudulent means, I can not seek permission as Section 5 is stayed. This section applies to normal conversions too,” Trivedi argued.

To this the Chief Justice, as reported by LiveLaw, said, “Prior to the amendment, marriage was not under Section 3, but now, because of marriage coming into section 3, a conversion for marriage would also require section 5 permission. So, in that sense, we have only stayed in the context of marriage. We have stayed Section 5 with respect to marriages only. We have not stayed Section 5 as a whole.”

Even Justice Biren Vashinav reportedly remarked, “You will haul up a person by saying that no previous permission was taken under Section 5, even if the marriage is lawful and the interfaith marriage is by consent, you will say breach of section 5.”

Trivedi asked, “The other sections which have been stayed are related to marriage, while section 5 is for legal voluntary conversion. Under that section, if someone goes to the priest, the priest has to take the permission. It deals with lawful conversion. Why a section dealing with lawful conversion should be stayed?” 

The Chief Justice said that as per its order “rigors of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnized by a person of one religion with another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.” He clarified that the court has not stayed permission required for lawful conversion of any individual. It has only stayed permission required for marriage.

Previous hearings

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:

Guj gov’t seeks removal of stay on operation of sec 5 of anti-conversion law
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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