The state government, in its petition challenging Gujarat High Court’s order which had stayed operation of eight sections and subsections of Gujarat Freedom of Religion (Amendment) Act, 2021, has challenged only the stay on the provision that stipulates requirement of prior permission from district magistrate for religious conversion. The provision was introduced in the original act of 2003.
Section 5 of the Act requires a person who is converting another person from one religion to another, to seek prior permission for such a conversion from the distinct magistrate and also requires the person converting to send an intimation to the district magistrate of the district where the ceremony of conversion took place. Failing to adhere to this provision attracts imprisonment upto one year or with fine which may extend upto Rs 1,000, or both.
The petition has been tentatively listed for hearing on December 17.
Citing Supreme Court judgments, the Gujarat government, in its petition, states that it has been already specifically held that there is no fundamental right of any person to convert another person to one’s own religion because if one purposely converts another, it impinges on the freedom of conscience, guaranteed to all citizens.
The state government goes on to submit that the high court thus “erred” in not appreciating the law laid down by the apex court when it had upheld similar provisions in the Odisha’s Act.
It has also been highlighted by the Gujarat government that the High Court order had expressed “prima facie opinions and observations on the word ‘marriage’ having been inserted,” by the state in its amended Act but according to the state, section 5 of the Act “has nothing to do with the aspect of ‘marriage’ but is dealing with the procedure to be followed for conversion from one religion to another in genuine cases by an individual.”
However, by the state’s own admission, as mentioned in the petition, due to the stay on Section 5 of the Act, in cases of marriages without force, allurement or fraudulent means, “the whole of the said section has been rendered redundant, frustrating the operation of the entire Act of 2003, which is causing grave prejudice and irreparable harm to the society at large of the petitioner state.”
It has also been submitted that section 5 has been in operation since 18 years and has not undergone any change and thus the challenge to this provision “at such a belated stage ought to have been taken into consideration” before Gujarat High Court stayed the operation.
The Gujarat High Court had stayed eight sections of the amended Act on August 19, including section 5, which was also part of the original Act of 2003. The state had then moved an application for “speaking to minutes” before the bench, for a modification in the order, seeking that Section 5 be removed from the stayed sections.
The bench had disposed off the application, noting, it does not “find any good reason” to make any change.