District Magistrate's Nod For Religious Conversion A Precautionary Measure; Protects Women & Backward Classes : Gujarat Govt Tells Supreme Court

This affidavit was submitted by the state government in response to a petition filed by Bharatiya Janata Party leader Ashwini Upadhyay praying for, inter alia, the Centre and the states to be directed to take "stringent steps" to control forcible and fraudulent religious conversions through intimidation, allurement, or otherwise. A Division Bench comprising Justices M.R. Shah and C.T. Ravikumar had, earlier in September, issued notice and sought responses from the Centre and the states. On November 14, the top court observed that forced religious conversion jeopardised the security of the nation and impinged on the religious freedom of citizens. "The issue with respect to the alleged conversion of religion, if it is found to be correct and true, is a very serious issue which may ultimately affect the security of the nation as well as the freedom of religion and conscience of the citizens," the Bench had noted. The Union government was also directed to procure information from the states regarding the steps taken by them to prevent forceful religious conversions and collate all the information obtained.

"The right to freedom of religion does not include a fundamental right to convert other people to a particular religion. The said right certainly does not include the right to convert an individual through fraud, deception, coercion, allurement or other such means," the state government has submitted, questioning the Gujarat High Court order that stayed certain provisions of the 2003 Act, also dubbed as the state's "anti-love jihad law". The Gujarat government has not only filed a separate SLP challenging,  the High Court order insofar as it put the operation of Section 5 of the Act on hold but has also filed an application seeking a stay on the order so as to fully implement the provisions of the Act, particularly Section 5, which is an "enabling provision", the top court has been informed. "The High Court, while passing the order, failed to appreciate that by staying the operation of section 5 of the Act of 2003, the whole purpose of the Act effectively stands frustrated," the affidavit states.

The controversial Act is a "validly constituted legislation" and Section 5, which mandates prior permission of the district magistrate for religious conversion, through marriage or otherwise, is a "valid provision of law" which has held the field for the last 18 years, the state government has claimed. The objective of the enactment is to "maintain the public order within the State of Gujarat by protecting the cherished rights of vulnerable sections of the society including women and economically and socially backward classes", the affidavit states.

"The meaning and purport of the word 'propagate' in Article 25 of the Constitution was discussed and debated in great detail in the constituent assembly, and its inclusion was passed only after the clarification that the fundamental right under Article 25 would not include the right to convert," the government affidavit reminds. It has also been pointed out that the constitutionality of Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967 which were pari materia with the Gujarat Act, was challenged before a Constitution Bench, which held that fraudulent or induced conversion impinged upon the right to freedom of conscience of an individual apart from hampering public order and, therefore, the State was well within its power to regulate or restrict the same. "Enactments like Gujarat Freedom of Religion Act, 2003 have been upheld to be valid by this Court," the government of Gujarat has submitted before the Bench.

Case Title

Ashwini Kumar Upadhyay vs Union of India [WP (C) 63/2022]