Gujarat HC questions law that treats interfaith marriages as religious conversion offence

The Gujarat High Court on Thursday issued notice to the state government (advocate general) on a petition challenging the recently implemented Gujarat Freedom of Religion (Amendment) Act, 2021, also described by the Vijay Rupani government as an "anti-love jihad" law. The controversial law came into existence from June 15 and since then nearly half-a-dozen FIRs have been registered and as many people have been arrested.

The division bench of chief justice Vikram Nath and justice Biren Vaishnav while issuing notice also questioned the government's reasoning behind making the "conversion by marriage" as a criminal act. The court asked the government pleader to clarify how an offence can be made out simply because one converts after marriage. "Either you say marriage by force or by fraudulent means, and if there is a conversion, then it is not right..fair enough, but if you say merely because of marriage somebody converts then it is an offence?" the division bench questioned. The government pleader Manish Lavkumar sought time to explain and said that "the law has to be examined in its totality."

The Vijay Rupani led BJP government's Gujarat Freedom of Religion (Amendment) Act, 2021 penalises forcible or fraudulent religious conversion by marriage and has provision for punishment of 3 to 10 years in jail. In the earlier law, of 2003, conversion was prohibited in cases where force and allurement were made. In the new law, the government aims to "ensure that no one is converted under the influence of greed, coercion or any kind of violence in Gujarat."

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The new law has also broadened "allurement" for conversion by adding words such as "better lifestyle, divine blessings or otherwise so that the person who offers any person for a better lifestyle, divine blessings or otherwise may be punished under the provision of the said Act." A new section in the act also allows any aggrieved person related by blood to lodge an FIR in such cases.

The law has been challenged in the high court by Jamiat Ulama-e-Hind, Gujarat and others. The petition says that "defining allurement to include even an exhortation to better lifestyle, divine pleasure/displeasure, virtually, all propagation activity is covered and criminalized." It says that the new law also "renders illegal and further criminalizes the institution of marriage which is an inherently legal and the most basic fundamental right guaranteed to every person."

Besides raising issues of putting women and minors in the same category for "protecting" them against conversion, the petitioner's lawyer senior counsel Mihir Joshi pointed out how the law has taken away rights of two adults' of two religions to marry merely based on the complaint by their father, mother or uncle claiming that the marriage is only for conversion and entire police machinery is set into motion. "The locus is given to any wise uncle to file a complaint in case two adult persons have agreed to marry," Joshi said.

He further argued, "I am more concerned with how the state intrudes into marriage. You are putting conversion by marriage or a person getting married or aiding a person to get married. This completely flies in the face of article 21 and supreme court judgement which stated that law and court can't enter this field." He argued that other ingredients such as use of force, fraudulent means, among others, for conversion are already criminal deeds prescribed under the law but this new law is bringing interfaith marriage, which is not illegal in itself, as a criminal offence.