Ahmedabad: Forty-eight hours after the Gujarat High Court observed that the State’s anti-love jihad law was a like a “sword hanging” over interfaith couples, a division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav on Thursday stayed the operation of vital sections of the Gujarat Freedom of Religion (Amendment) Act, 2021.
Hearing two writ petitions challenging the legislation, the high court had told the Gujarat Government on Tuesday that the Act nowhere read that inter-religion marriages were permissible.
Delivering an interim order on Thursday, Chief Justice Vikram Nath said the purpose of the stay was to spare interfaith couples “unnecessary harassment.”
The bench ordered, “We are of the opinion that pending further hearing, rigors of section 3, 4, 4a to 4c, 5, 6, and 6a shall not operate merely 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."
The straight implication of the stay order is that no FIR could be registered under this law merely on the basis of an interfaith marriage.
The stay order, significantly, comes exactly two weeks after the 25-year-old woman from Vadodara in Gujarat’s first alleged love jihad case moved the high court seeking to quash her FIR against her husband, in-laws and the priest, insisting that she was not forced to convert. And this petition follows a month after her affidavit in a Sessions Court seeking to withdraw her complaint claimed that she was pressurized to file the FIR. (Free Press Journal was the first to report this).
Her husband, who had first allegedly met her with a Christian name on social media and they married in 2019 with Islamic rituals, was arrested after her complaint on June 15 – just three days after the Gujarat Government notified the law.
The August 5 quashing petition by the woman flies in the face of the Gujarat Advocate-General Kamal Trivedi’s arguments in the high court that interfaith marriage couldn’t be a tool of forceful conversion.
When he sought to know from the high court on Thursday what if a marriage resulted in forceful conversion, the Chief Justice said, “There has to be a basic element of force or allurement or fraud. Without that you will not (proceed), that's all we have said in the order.”
The high court order, although interim, has come as a huge setback for the ruling BJP not only in Gujarat but could also have implications on similar anti-love jihad laws passed by the Uttar Pradesh and Madhya Pradesh Governments ruling by the saffron party.
Asked to react on the court order, Gujarat Deputy Chief Minister Nitin Patel told mediapersons that, “When such rulings are passed, our legal department and other technical sections look into it. Once we receive this interim order and after our legal experts examine it, the government will decide on the future course of action.”
Mujaheed Nafis of Gujarat Minority Coordination Committee, who is a petitioner along with the Gujarat chapter of the Jamiat Ulema-e-Hind, told this reporter, “Our premise is that this law is unconstitutional from its very inception since it infringes upon the liberty of the citizens to choose their religion and marry according to their choices.”
What do the key sections the implementation of which has been stayed say:
· Section 3 (which defines forcible conversion): “No person shall convert or attempt to convert 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”.
· Section 4 says people found guilty of violating the provisions of Section 3 will face up to three years of imprisonment and a fine of Rs 50,000. If the victim is a minor, a woman or from SC or ST community, then the jail term will be four years with a fine of Rs one lakh.
· Section 4A (deals with "marriage by unlawful conversion" part of Section 3): “Conversion by marriage or by getting a person married or by aiding a person to get married is concerned, shall be punished with imprisonment not less than three years, but may extend up to five years along with a fine of Rs 2 lakh".
· Section 4B states any marriage for the purpose of unlawful conversion "shall be declared void by family court". And Section 4C includes institutions or organisations found involved in unlawful conversions.
· Section 5 mandates religious priests to seek permission from a district magistrate for conversion. And the one who got converted also needs to "send an intimation" to the DM in a prescribed form.
· Section 6 wants that a prior sanction of the DM or a sub-divisional magistrate is necessary to start prosecution against the accused and Section 6A says the burden of proof is on the accused "who has caused the conversion".
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