Interreligious Marriages - Gujarat Govt Approaches Supreme Court Challenging Stay On Section 5 Of Gujarat Freedom of Religion Act

The Gujarat Government has filed an Appeal before the Supreme Court against the interim order passed by the Gujarat High Court in August, staying Section 5 of the Gujarat Freedom of Religion Act, 2003 while hearing two petitions challenging the constitutional validity of certain provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021.

A Division Bench of the then Chief Justice Vikram Nath (presently a Judge of the Supreme Court) and Justice Biren Vaishnav, on August 19, stayed Sections 3, 4, 4A to 4C, 5, 6, and 6A of the newly amended Act in relation to interreligious marriage solemnised without force, allurement or fraudulent means. The interim order was passed in petitions filed by the Jamiat Ulama-e-Hind Gujarat and Mujahid Nafees.

"We are therefore of the opinion that, pending further hearing the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A shall not operate merely because a marriage is solemnised by a person of one religion with a person of another religion without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.", said the operative portion of the order of the High Court.

The newly amended Sections broadly deal with conversion after the marriage, even if the same was with the consent of both the parties, allowing relatives to implicate the persons or institutions that facilitate the conversation, if done without following due process.

The amendment in 2003 law, which is popularly known as Love Jihad Act, was brought in force to restrict incidents of forceful conversion from one religion to another, by way of marriage. Section 5 of the 2003 Act has been retained as such ever after the amendment of 2021 and it is in operation since 18 years.

On August 25, the Gujarat Government had moved an application for 'speaking to minutes' for rectification of the interim order passed on August 19 with respect to Section 5. It was submitted that the Court had virtually stayed Section 5, which has nothing to do with marriage.

However, the High Court, on August 26, rejected the plea seeking rectification in its order.

The Gujarat Government has assailed both the orders before the Supreme Court.

It is contended in the Appeal that Section 5 of the 2003 Act makes it mandatory to take prior permission of the District Magistrate whoever converts the persons to the other religion. The person who was converted has to make an intimation to the District Magistrate.

The Special Leave Petition filed through Advocate Deepanwita Priyanka states that, "On a bare perusal of the provision, it is discernible that as per sub-section (1) of section 5 of the Act of 2003, the person who is converting another person from one religion to other is required to take prior permission from the District Magistrate, whereas sub-section (2) of section 5 of the Act of 2003 requires the person who is getting converted to merely intimate the District Magistrate and whoever fails to comply with the said sub-sections, would be punishable as per sub-section (3) of section 5 of the Act of 2003."

The Appellant has relied upon the judgments in the matter of Rev. Stainislaus Vs. State of Madhya Pradesh and Satya Ranjan Majhi Vs. State of Orissa in which the Supreme Court upheld the constitutional validity of Madhya Pradesh Dharma Swatantraya Adhinivam, 1968 and Orissa Freedom of Religion Act, 1967 respectively.

"It has specifically held that there is no fundamental right of any person to convert another person to one's own religion, because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike," the Appeal states.

It is contended in the Appeal that, "the provision related to seeking prior permission for converting another person from one religion to other, as contemplated under Section 5(1) of the Act of 2003, cannot be said to be affecting any of the fundamental rights in any manner".

The Government further submitted that the Apex Court had upheld the validity of an almost similar law in Orissa.

"In case of Satya Ranjan Majhi vs. State of Orissa this Hon'ble Court has, inter-alia, upheld the constitutional validity of the Rules 4 and 5 of the Orissa Freedom of Religion Rules, 1989, framed under the Orissa Freedom of Religion Act, 1967, which provide for similar provisions like the afore-quoted Section 5 of the Act of 2003, inter- alia, providing for the requirement of undertaking an inquiry by the Officer-in-charge of the concerned Police Station after ascertaining objections, if any, prior to the proposed conversion of an individual," the Appeal states.

Regarding the effect of Section 5 on marriages, it is stated in the Appeal that, "It is worthwhile to note that the provision of Section 5 of the Act of 2003, has nothing to do with the aspect of 'marriage', but is dealing with the procedure to be followed for conversion from one religion to other in genuine cases by an individual, which are without any fraud, allurement or fraudulent means. On the contrary, with the stay of the provision of Section 5 of the Act of 2003, in genuine and voluntary cases of conversion, no individual would follow the procedure prescribed under the said sections and resultantly, the same would rendered otiose and redundant".

The Appeal further highlights the fact that the validity of the Act of 2003 was earlier challenged before the High Court of Gujarat and it came to be dismissed as withdrawn in 2015.

"The provision of Section 5 of the Act of 2003, is an enabling provision which enables a person to get converted from one religion to another religion on his own volition. At the same time, the exercise of taking prior conversion also obviates the forcible conversion and protects the "freedom of conscience" guaranteed to all the citizens of the Country. The steps stipulated therein are the precautions to ensure that the process of renouncing one religion and adopting another religion is genuine, voluntary and bona fide and at the same time, free from any force, allurement and fraudulent means".

It also stated that the High Court has erred in relying upon a judgment of Himachal Pradesh High Court in the case of Evangelical Fellowship Vs State of Himachal Pradesh. The said Act in Himachal Pradesh mandates convertee to give prior notice to the authority before and seek permission, while Section 5(2) of the 2003 Act mandates the convertee to intimate the authority and mandates the person who is converting others to seek prior permission, it is contended.

Though the Appeal was filed in September, it was registered only this month.