The Gujarat High Court has stayed some sections of the Gujarat Freedom of Religion (Amendment) Act, 2021, in an interim order passed on 19 August 2021. It was issued in response to a petition filed by the Jamiat Ulema-e-Hind, which argued that parts of the Act passed in June this year were unconstitutional.
The Act, which accompanied a slew of similar legislation either passed or planned by other states where the Bharatiya Janata Party (BJP) is in power, sought to ban the ‘fraudulent’ religious conversion mainly of women through marriage. To put it bluntly, it tried to prevent the marriage of Hindu women with Muslim men, especially, but not exclusively, when the woman converted to get married.
Before we get to the implications of the interim stay and the backstory, which gives them context and meaning, it would be helpful to look at which sections of the Act the court has stayed and what they say. While passing its order, the two-judge bench said: “We are of the opinion that pending further hearing, Section 3, 4a to 4c, 5, 6 and 6a shall not operate because the marriage is solemnised by a person of one religion with another religion without force, allurement or fraudulent means and such marriages cannot be termed as marriage for the purpose of unlawful conversion.”
In other words, the judges laid to rest the bogey, incessantly raised by the peddlers of Hindutva, that all marriages involving a Hindu and a Muslim hare motivated by the desire to convert Hindus to Islam. Marriages between Hindus and Christians are also peripheral targets of the Act.
The amendments allow any “aggrieved person, his parents, brother, sister or any other person related by blood, marriage or adoption” to lodge an FIR against a person putatively guilty of a marriage involving conversion. It provides for imprisonment for three years, extending to five, plus a minimum fine of Rs. 2,00,000; empowers family courts or any other court with the requisite jurisdiction to declare the marriage “void”; and imposes the burden of proof in respect of the motive behind the marriage on the person who has ‘caused’ the conversion.
At first blush, clearly, the Gujarat Act contravenes several fundamental rights. Among them are the right to freedom of religion (Article 25 of the Constitution) and the right to privacy (upheld by a nine-judge bench of the Supreme Court in August 2017 and mainly derived from Articles 14, 19 and 21). The latter discountenances any meddling by the state in the personal lives of citizens unless questions of public security or illegal activities are involved.
In fact, in an earlier hearing on 6 August, the bench, while issuing notices to the Gujarat government and the advocate-general of the state, had observed that a married couple should be able to determine what religion they should follow – in line with the right to freedom of religion and privacy.
The BJP’s toxic exclusionary agenda drove the Gujarat Amendment Act. Uttar Pradesh and Madhya Pradesh passed similar Acts too. More are on the anvil in Assam, Haryana and Karnataka. They were inspired by the BJP’s victory in the 2019 election and an Act passed by Uttarakhand in 2018.
The primary objective of this class of legislation is to demonise the Muslim population and Christians to an extent. The various denominations of the Christian religious establishment have for long been accused of converting Hindus and tribal people (assumed by Hindutva peddlers to be Hindus, though mostly they are not) through inducement and allurement; and attacked, as in Gujarat’s Dangs district in 1998-99.
But the puerile charge made by a band of obscurantists of marriage being used as a weapon for conversion by young Muslim men is so unbelievable that it should be laughed out of court. Among substantial sections of the citizenry, including those who are soi-disant educated, however, this vacuous argument is not always found to be delusional. However, the basic rubric of the argument contained in the cretinous phrase “love jihad” gives the game away.
The supposition of an organised, well-funded campaign involving Muslim men converting and marrying (or marrying and converting) Hindu women with the ulterior motive to change India’s demographic balance is such an absurd conspiracy theory that it invites an obvious conclusion: Those who peddle it don’t believe it. It has been manufactured to attack Muslims and keep them off balance—while trying to actualise the Sangh Parivar’s Holy Grail of a Hindu Rashtra. In other words, it is an authoritarian and majoritarian manoeuvre.
Fortunately, for now, the Gujarat High Court has put a stop to it. No FIRs can be lodged under this unconstitutional piece of legislation; no innocents persecuted. This is, of course, an interim order. One hopes that its spirit will prevail as hearings continue. If things don’t go their way, the Gujarat government can appeal an unfavourable verdict in the Supreme Court.
But though the balls are in the air, the interim order opens a pathway to concerned citizens or organisations to pursue harder the legal challenges to the erroneously designated “freedom” of religion acts in the other states, with the force of a precedent behind them. The Uttar Pradesh law has been challenged in the Allahabad High Court and the Supreme Court, while the Uttarakhand has been challenged in the top court, which agreed to examine both earlier this year.
They are currently hanging fire, though the Allahabad High Court has spoken in favour of adults being free to choose their partners and the desirability of the state not interfering in such personal matters in preliminary remarks made while admitting several petitions. The Allahabad High Court has also provided relief to several interfaith couples.
A challenge can and should be mounted against the Madhya Pradesh Act.
Hopefully, with the Gujarat High Court leaning towards protecting the constitutional rights of citizens and precedents in the process of being created, states that have yet to enact legislation will find a reason to stay their hand.
The writer is an independent journalist and researcher. The views are personal.
First published by Newsclick.