"Choice Of Religion Is Between Two Individuals": Gujarat HC Seeks Govt. Reply On Plea Challenging Gujarat Freedom Of Religion Act

The Gujarat High Court today issued notice to the Gujarat State Government challenging the vires of the Gujarat Freedom of religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021 noting that it is for the married couple to decide which Religion to follow (in case of inter-religious marriage).

Read more about the Act here: Gujarat Assembly Passes Freedom Of Religion Amendment Bill 2021

Submissions of the Petitioners 

Referring to the Gujarat Freedom of religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021 [Section 3], Counsel Mihir Joshi argued that Conversion by marriage or by a person getting married has been made an offence and that it flies in the face of Article 21. 

"An inter-religious marriage is never smooth, this act is essentially taking away the choice of two adults from different religions to get married. Marriage is not illegal in itself, which has been made an offence."

It may be noted that the original act of 2003 only prohibited forcible conversion from one religion to another by use of force or by allurement or by fraudulent means, however, now the amended Act prohibits acts like forcible religious conversion by marriage or aiding a person to get married.

Court proceedings

The Bench of Chief Justice Vikram Nath and Justice Biren Vaishnav orally remarked thus:

"Either you say if there is marriage by force or fraudulent means & then there is conversion, then, of course, it is not right, fair enough...But if you say only because of marriage, someone converts & so it is an offence (it isn't correct)"

To this, State Counsel Manisha Luvkumar replied that "if the lure of marriage is the only means based on which there is conversion...". 

"We can clarify that if there is an inter-religion marriage, without there being any coercion, or any fraudulent means or any allurement then at least that should not be treated as an offence...the moment someone lodges FIR, the person goes to jail" the Chief Justice orally remarked.

To this, State Counsel Manisha Luvkumar again replied thus - "The object of the Act is to see that in a relationship, to say that unless you convert there will be no marriage and therefore, marriage if you want, you need to convert...That is what is sought to be addressed"

To this, CJ Vikram Nath said: "But it is between two individuals." 

To this State Counsel, Manisha Luvkumar said: "Very honestly, at this stage, I have not examined the Act in totality. Please issue notice. I haven't examined the Acti in-totality, and thus, I am unable to assist the Court."

Further, Justice Vaishnav said thus:

"No if someone gets married, you sent him to Jail then the State will satisfy itself that the marriage wasn't by force?."

"Per see an inter-religion marriage, it can't be an offence. Per se marriage doesn't require the conversion," submitted the State Counsel.

"But, it is for the married couple to decide which religion to follow," remarked the Court.

Additionally, the Chief Justice also remarked:

"If the state takes any action/sends to jail any person in case of inter-religion marriage, you come to us we will protect you."

Lastly, issuing notice to the State Government, the High Court posted the matter for hearing on August 17. Further, since the State Act has been challenged, the Court issued notice to the Advocate General as well.