Gujarat's anti-conversion law violates right to choice, rules HC while staying provisions

The Gujarat Freedom of Religion (Amendment) Act, 2021 prima facie violates Article 21 of the Constitution i.e right to life, the Gujarat High Court ruled. A division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav's order came on a plea filed by Muhammed Hakim challenging the provisions of this law against forcible conversion through marriage. While the anti-Love Jihad bill passed in the state Assembly on April 1 after a day-long discussion, it received the assent of Gujarat Governor Acharya Devvrat on May 22 and was formally notified on June 15.

The Congress voted against the bill with its MLA Imran Khedawala alleging that it targets only the Muslim community. In its order dated August 19, the HC observed that the legislation virtually prohibits any conversion on account of marriage. Quoting the Supreme Court's verdict in the Shafin Jahan vs Ashokan case, it held that a conversion cannot be considered unlawful merely because it has been done for the purpose of marriage. Additionally, it highlighted that the law puts the couple validly entering into an inter-faith marriage in great jeopardy as the burden of proof has been shifted to them.

Here are the HC's key observations: 

The HC noted, "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. 8. 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". It added that this interim order is to protect the harassment of inter-faith couples. 

Thus, sections such as lodging of the complaint, punishment for marriage by unlawful conversion, offences by institutions, prior permission from District Magistrate for conversion, prosecution and burden of proof on the parties will not be operational. Under this bill, all offences are non-bailable, attracting a jail term of up to 10 years. Earlier, Uttar Pradesh and Madhya Pradesh also passed legislation against forcible conversion through marriage. While some organizations construe Love Jihad' as inter-religious marriages where the woman converts to Islam either by force or guile, it is not defined under the current laws.