Gujarat govt's anti-conversion law interferes with right to choice: HC

The Gujarat High Court, while suspending several sections of the state government's contentious Freedom of Religion (Amendment) Act, 2021, described by the state government as "anti-love jihad" law, has observed that the law "interferes" with "the right to choice of an individual" and criminalises all interfaith marriages and consequential religious conversion.

"Prima-facie, inter-faith marriages between two consenting adults by operation of the provisions of Section 3 of the 2003 Act interferes with the intricacies of marriage including the right to choice of an individual, thereby infringing Article 21 of the Constitution Of India," the division bench of chief justice Vikram Nath and justice Biren Vaishnav has noted in the order passed on Thursday while its copy was made available on Friday.

The state government recently amended the Gujarat Freedom Of Religion Act, 2003 by inserting several sections against religious conversion and made punishment harsher for the violators. In Section 3 of the principal Act, the government had prohibited religious conversion of any person by use of force or allurement or by any fraudulent means. The Vijay Rupani government amended this section by adding marriage as a medium of conversion.

The high court has said, "A plain reading of Section 3 would indicate that any conversion on account of marriage is also prohibited." The order notes that the way state government is trying to interpret its reasoning may not be understood by the common man, the bench has noted, "The interpretation of Section 3 of the 2003 Act as (Kamal) Trivedi, Advocate General wants us to read would be a subject matter of adjudication but prima facie on a plain reading of Section 3 of the 2003 Act, we feel that marriage inter-faith followed by conversion would amount to an offence under the 2003 Act. Marriage itself and a consequential conversion is deemed as an unlawful conversion attracting penal provisions."

The court has said, "From the perception of the common man, it appears that merely because a conversion occurs because of marriage, it per se cannot be held to be an unlawful conversion or a marriage done for the purpose of unlawful conversion." It adds, "We feel that marriage inter-faith followed by conversion would amount to an offence under the 2003 Act. Marriage itself and a consequential conversion is deemed as an unlawful conversion attracting penal provisions."

The court has also pointed out how Section 6A of the Act places the burden of proof on interfaith couples "to prove that the marriage was not solemnised on account of any fraud, allurement or coercion" which again puts the parties validly entering into an inter-faith marriage in great jeopardy.

Ordering a stay on these sections as an interim relief, the bench has stated, "interim order is provided only on the lines of the arguments advanced by Trivedi, Advocate General and to protect the parties solemnizing marriage inter-faith from being unnecessarily harassed." The interim relief came on a set of petitions moved by Jamiat Ulama-e-Hind and Ahmedabad-based activist Mujahid Nafees, challenging the constitutional validity of the amended law.