State Govt Moves Gujarat High Court Seeking Rectification Of Order Staying Section 5 Of Gujarat Freedom Of Religion Act

The operative part of the August 19 order read as follows:

"After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the 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. The above interim order is provided only on the lines of the arguments made by the learned Advocate General Mr.Trivedi and to protect the parties of inter-faith marriage from being unnecessarily harassed".

Appearing before the Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav, the Advocate General Kamal Trivedi argued that Section 5 of the Act has nothing to do with marriage per se.

"Section 5 has nothing to do with Marriage, it is related to permission for conversion which has been there since the year 2003. People have been taking permission to convert since the year 2003. In the entire interim order of the Court, there is no mention of Section 5 and it appears for the first time in the operative portion of the Order," AG argued.

"Virtually, section 5 has to stay, even when conversion is voluntary. If I want to marry a Muslim boy, people are coming forward and taking permission for the conversion, before or after marriage, and even without marriage they come forward to take permission. Section 5 is not talking about Marriage," the AG added.

In this backdrop, the Court agreed to hear the case and asked AG to inform the lawyers about it and come back tomorrow to argue the matter.

Background

While protecting inter-faith marriages by consenting adults from the rigours of the Gujarat Freedom of Religion(Amendment) Act 2021, the Gujarat High Court, on August 19, prima facie observed that the law "interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India".

A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav observed that the provisions of the law, commonly known as the 'love jihad' law, put parties who have validly entered into inter-faith marriage "in great jeopardy".

The High Court said that a common man might perceive every conversion due to inter-faith marriage as prohibited by the Act.

"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 said.

"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 the choice of an individual, thereby infringing Article 21 of the Constitution Of India", the Court added.

The Amendment Act was notified on April 1 this year, in the lines of "anti-love jihad" laws brought by the States of Uttar Pradesh and Madhya Pradesh. The provisions of the Amendment Act are explained here.

The bench passed the order in a writ petition filed by Jamiat Ulama-E-Hind and Muhahid Nafees challenging the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021.

The act was challenged as an invasion into personal autonomy, free choice, freedom of religion, and unlawful discrimination and hence violative of the fundamental rights under Articles 14, 21 and 25 of the Constitution. On August 5, the Court had heard arguments in the petition (report may be read here).

The provisions dealt with by the court's interim order :

Section 3 of the Act prohibits forcible conversion from one religion to another by use of force or by allurement or by fraudulent means, however, now the amended Bill proposes to prohibit acts like forcible religious conversion by marriage or aiding a person to get married.

Section 3A enables any aggrieved person, his parents, brother, sister, or any other person related by blood, marriage or adoption may lodge an FIR with respect to an alleged unlawful conversion.

Section 4A prescribes punishment of imprisonment in the range of 3 to 5 years for unlawful conversion.

Section 4B declares marriages by unlawful conversion as void.

Section 4C deals with offences of organizations doing unlawful conversion.

Section 6A places the burden of proof on the accused.

In effect, the Court has held that these provisions will not apply to inter-faith marriages based on free consent by adults.