By Dr Swati Jindal Garg
Freedom to practice one’s own religion has been a fundamental right that every citizen of India is given under our Constitution. However, just like nothing in life is constant except change, a person has also been given the right to choose the religion that he wants to practice, and if for this purpose, he takes up the option of converting to another religion at some point in his life, then the same should be allowed to him as a part of his fundamental rights. This issue wherein the right to freedom of religion is also said to include the right to convert has been taken up time and again in the Indian courts.
The Gujarat Legislative Assembly recently amended the freedom of religion legislation, which penalises forcible or fraudulent religious conversion by marriage. The Gujarat Freedom of Religion (Amendment) Act, 2021, was passed, which prohibits forcible religious conversion by marriage and the same came into force from June 15, 2021. This stringent legislation was passed in the Gujarat assembly on April 1, 2021, with a majority vote after a marathon debate amid opposition by members of the Congress who termed the Bill as one with “political agenda”.
The latest Act has amended the Gujarat Freedom of Religion Act, 2003 with some stringent provisions against any individual or institution indulging in forcible religious conversion by marriage. It has provisions like maximum punishment of up to 10 years imprisonment and a fine up to Rs 5 lakh, burden of proof on the accused and investigation by an officer not below the rank of deputy superintendent of police, thereby giving powers to the state to conduct a police inquiry to verify the intentions of the parties to convert for the purpose of marriage. The law ostensibly seeks to end conversion through unlawful means and specifically prohibits any conversion for the sake of marriage, even if there is consent from the individual, except when prior sanction is obtained from the state. Moreover, any marriage done with the sole purpose of religious conversion will be declared null and void by the court having jurisdiction under the provisions of the Act. The Act is aimed to deal with religious conversion through “allurement, force or by misrepresentation or by any other fraudulent means”.
In the original Act, the maximum punishment for forcible religious conversion by fraudulent means was imprisonment for four years and a fine up to Rs 1 lakh. The original Act had two categories of “allurement”—“any gift or gratification, either in cash or kind” and “grant of any material benefit, either monetary or otherwise”. The amended Act has now added a third category to the allurement clause: “better lifestyle, divine blessings or otherwise” and has thus broadened the definition, making it sweeping and vague. The new anti-conversion laws shift the burden of proof of a lawful conversion from the converted person to his/her partner.
Inter-faith nuptial relationships have become a hot topic for debate in several states in India, starting from Uttar Pradesh, Madhya Pradesh and now Gujarat. On November 20, 2020, the BJP national general secretary also announced to bring out such a law in Karnataka.
While legal experts point out that these laws interfere with an individual’s right to marry a partner from a different faith and right to choose to convert from one’s religion for that purpose, the state government has contended before the Gujarat High Court that there is no “ban on inter-faith marriages” in the state and has defended its new anti-conversion law, saying marriages cannot be a tool for “forceful conversion.”
The High Court at present is hearing two petitions that have challenged the newly enacted amendment in the law, which deals with forcible religious conversion through marriages. During the hearing, a bench of Chief Justice Vikram Nath and Justice Biren Vaishnav also observed that the amended law keeps a sword hanging over interfaith couples because it creates an impression that interfaith marriages are not permissible in the state.
One of the petitions against the Gujarat Freedom of Religion (Amendment) Act, 2021, was filed in July by the Gujarat chapter of the Jamiat Ulema-e-Hind after the amended Act became a law in the state in June. In the petition, it was argued that the amended law goes against the basic principles of marriage and the right to propagate, profess and practice religion as enshrined in Article 25 of the Constitution. The state, on the other hand, contended that there are adequate safety valves in the law to ensure that its provisions are not misused and that the focus of the law is on unlawful conversion and not on marriages.
The High Court has stayed key provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021. This interim stay provides relief to interfaith couples stating that: “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.”
Section 6A that reverses the burden of proof on the partner of the converted spouse to prove that he/she did not coerce the other spouse and Section 4, which allows the aggrieved person, their parents, brother, sister, or any other person related by blood or marriage or adoption to file an FIR challenging the conversion and subsequent marriage have also been stayed vide the High Court order. This interim stay will however, have to be confirmed when the larger challenge is decided.
The state in its defense, however, said that the Act is to be read as a whole in order to be interpreted in the correct manner and some sections of it cannot be read in isolation. The High Court, on the other hand, stated that the wider interpretation will happen at a later stage, and stayed the provisions for the time being.
Even though the Court ruling comes as a much-needed respite to inter-faith couples, the same can also have an impact on the challenges pending in other courts on the same issues. It is uncontested that marriage is a private affair between two consenting adults irrespective of the matters of caste, class, or the religion that they profess.
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Even though inter-faith and inter-region marriages can be said to be a huge factor in propagating unity in diversity, such unions must only be as a result of a consensual relationship and not on the basis of fear or coercion in order to convert a person to another religion. Any marriage that is conducted on the basis of fear or forceful conversion is without doubt against the spirit and purpose of unity, and enacting a law to regulate inter-faith marital preferences not only covers shaky ground but may also be said to be tampering with the secular thread of the country.
The State should not regulate personal choices of its citizens but at the same time our Constitution has indeed empowered the State to put reasonable restrictions on the personal liberties that are enjoyed by its citizens. Whether the said laws encroach upon the fundamental rights of its citizens or are under the protection of the umbrella of “reasonable restrictions” will become clearer as the larger issue is decided by the courts in the coming days, but the fact remains that balancing personal liberties with greater good is a tricky task and the judiciary has once again been put in an unenviable situation.
—The author is an Advocate-on-Record practising in the Supreme Court of India, Delhi High Court and all district courts and tribunals in Delhi