August 6, 2021 4:02:04 am
The Gujarat High Court on Thursday issued notice to the state government and the advocate general in two petitions challenging the recent amendments to the Gujarat Freedom of Religion (Amendment) Act, 2021 on the grounds that the law is in violation of constitutional rights, is manifestly arbitrary and violates the right to privacy.
The respondent state is expected to take instructions and respond by the next date of hearing scheduled for August 17. The bench of Chief Justice Vikram Nath and Justice Biren Vaishnav also asked the state counsel to interpret what was meant by conversion “by marriage” introduced in the amended act.
Senior advocate Mihir Joshi representing the petitioners submitted that the petitions are challenging the amendments and the impact it has on the old provisions also “because it has now brought in the concept of conversion by marriage”. Stating that while Article 25 of the Constitution guarantees freedom to propagate religion and that the unamended act made forcible or fraudulent conversions an offence, “the amendment goes far more than that… It has vague terms incorporated which affect your right to propagate (religion) and also the right to privacy essential to an individual, being that of marriage.”
One petition moved by Jamiat Ulama-e-Hind and Jamiat Ulama Welfare Trust and another moved by an Ahmedabad resident Mujahid Nafees have challenged the amended Act which was brought into force from June 15 this year.
The challenge includes the broader definition now of “allurement” which includes “better lifestyle, divine blessings or otherwise”, which has been termed as “vague” by the petitioners as the term ‘otherwise’ “could mean anything at all,” as was submitted by Joshi.
Agreeing with Joshi’s argument, Chief Justice Nath remarked that sections 2(a) (i) and 2 (a) (ii) which defines allurement as offer of any temptation in the form of ‘any gift or gratification, either in cash or kind and grant of any material benefit, either monetary or otherwise’, already takes care of the aspect of “better lifestyle in itself”, which has now been introduced as an additional specific clause in the amended act instead and aspects of divine blessings would otherwise fall outside of the scope.
The bench however inquired from government pleader Manisha Shah as to what is implied by the phrase of ‘by marriage’ as a condition under prohibition by forcible conversion.
While Shah sought time to respond to the contentions admitting that she had “not examined the Act in its totality,” the government counsel also opposed a stay on the operation of the Act.
The bench however said, “Whatever be the interpretation of your provision, we can say that two adults of two religions or an inter-religion alliance or marriage would not by itself constitute an offence, until and unless any of the ingredients of allurement, force etc are there… It is up to the married couple to decide which religion to follow…”
Section 3 of the amended Act Section 3, which now incorporates restriction on conversion upon interfaith marriage, states, “Prohibition of forcible conversion — No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by allurement or by any fraudulent means or by marriage or by getting a person married or by aiding a person to get married nor shall any person abet such conversion.”
Joshi pointed out that not only the scope of section 3 now stands widened owing to the new definition of what comprises “allurement”, but also the disjunctive ‘or by marriage’.
When highlighted, Chief Justice Nath posed a query to Joshi that if there is an interfaith marriage, “the two cannot decide to follow one religion?” to which Joshi replied in the negative adding that it would be an offence as per the new Act.
While Joshi during the course of the hearing inquired if the court will consider granting “some protection as far as offences are concerned on the (interfaith) marriage,” indicating at a stay on the operation of the new Act, Justice Nath remarked that let there be an FIR “registered only on the ground of marriage” following which the court may consider granting protection to the individual affected party.
The government counsel, however, vehemently opposed the court from passing any order and urged that notice be issued and time be granted to respond to the issues.
The petitioners have also challenged the insertion of sections 4A, 4B and 4C, which provide for punishment for contravention of provisions of section 3 in case of marriage by unlawful conversion, as well as section 6A whereby the burden of proof is put on the person who aided or caused the conversion that the same was not unlawful. The petitioners have submitted in their petition that the amended Act “effectively prohibits all inter-faith marriages under Section 3 and then criminalizes the same under Section 4A.”
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