Gujarat Freedom of Religion (Amendment) Act 2021: A Critical Analysis of its Constitutional Validity

Avikalp Mishra


Introduction

On 1 April 2021, the Gujarat Legislative Assembly amended the Gujarat Freedom of Religion Act 2003 which deals with instances of forcible religious conversions for marriage.[I] This newly enacted amendment was challenged before the Gujarat High Court through writ petitions, on the grounds that it violated certain fundamental rights. [ii] The Gujarat High Court passed an interim order prohibiting its application to inter-faith marriages. Observations of the Court in the aforementioned order provide useful insights in the aspects of freedom of marriage, free choice, and their significance under Article 21 of the Constitution of India (Right to Life). This piece analyses the overall constitutional validity of such an “anti-conversion” law in light of established judicial precedents, and also provides some suggestions to make such provisions more just and reasonable.  

Key elements of the legislation

The main aim behind the amendment was to curb such instances which involved forcible or fraudulent religious conversions under the pretext of marriage. The statement of objects and reasons of the Act expresses concern over the emerging trend of luring women into marriage on the grounds of a better lifestyle or divine blessings.[iii] The amendment considerably expands the scope of Section 3 of the original act, which initially prohibited only fraudulent religious conversions. Now, such marriages that involve a forcible religious conversion or assistance for the same have also been brought under the ambit of prohibition.

Section 3A of the amendment also enables the relatives of aggrieved persons (parents, brother, sister, and even persons related by blood, marriage, and adoption) to lodge a First Information Report (FIR) with the police station having jurisdiction. The proposed amendment, by adding a sub-section to Section 4 of the act, penalizes such persons who may be deemed to have taken part in the offence and imposes charges as if they have themselves committed the offence. It includes such persons who enable or aid the relevant offence through action or omission; or who abet, counsel, or convince another person to commit the offence.

By the inclusion of Section 4A, the proposed amendment prescribes a punishment of imprisonment not less than 3 years and extendable to 5 years, along with a fine, not less than two lakh rupees. In case such contraventions take place with a minor, woman, or a person belonging to Scheduled Castes/ Scheduled Tribes, the imprisonment period is not less than 4 years, and extendable to 7 years; along with a fine, not less than three lakh rupees. The amendment declares marriages conducted for unlawful conversion as void [Section 4B] and places the burden of proof of innocence on the persons primarily charged for the commission or facilitation of the offence [Section 6A]. In case any institution or organization is found to be engaged in conduct prohibited under Section 3, every person in charge or responsible could be subjected to imprisonment for a period of a minimum of three years, extendable to 10 years; along with a fine, not less than five lakh rupees [Section 4C]. Furthermore, the proposed amendment declares offences under the act as cognizable and non-bailable [Section 7].

Position of Indian judiciary on inter-faith marriages

Indian judicial institutions have discussed the issue of inter-faith marriages on multiple occasions, and have made some important observations. The Supreme Court of India observed in the Shafin Jahan v. Ashokan KM that the right to marry a person of one’s own choice is integral to the Right to life and liberty [Article 21]. [iv] This judgment holds particular significance in the present analysis because it involved a girl’s conversion to Islam shortly before marriage thus, attracting allegations of forceful conversion and ‘brainwash’ from society and family members. The judgment established that concepts of faith and religion could not interfere with a person’s absolute freedom to choose their life partner. It was also observed that the intricacies of marriage came under the inviolable core zone of privacy.[v]  A zone of privacy is an “area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee.”[vi] Thus, any intrusions (of society or faith) in matters of marriage are not allowed, since they come under the core (i.e. protected and fundamental) sphere of privacy. Quoting Justice D.Y. Chandrachud’s opinion “Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.”

The judgment of Allahabad High Court in Salamat Ansari’s v. State of U.P.  also provides some important insights. [vii] The case involved a couple (Salamat Ansari and Priyanka Kharwar) who had approached the court to seek the quashing of an FIR lodged against them for certain crimes (such as criminal abduction of a woman with the intent to compel her to marry against her will). They claimed that their marriage, which had involved the conversion of Ms Kharwar to Islam, was based on a valid contract involving two competent, consenting adults. The Court ruled in their favour and observed that religious conversions, even for the sole purpose of marriage, were a valid exercise of an individual’s rights. This exercise was not dependent on societal constructs of caste or religion, and it was a violation of constitutional values to make personal choices vulnerable to the state’s paternal whims. This means that a state cannot act as a dominant, all-controlling entity while taking decisions (especially on matters that are based on an individual’s own choice).

In Shakti Vahini v. Union of India, the apex court dealt with the aspect of societal interferences in a person’s choice of spouse (often in the form of activities such as honour killings and khap panchayat punishments) and held that no society, parent, or panchayat could question an adult’s right to marry anyone.[viii] Khap Panchayats are legally unrecognized social groups in rural India, that decide matters related to the conduct of younger people in matters of relationship and marriage and impose (often unreasonable and regressive) punishments in case of violations of the “social” or “customary” norms.

It was also observed in the Justice (Retd.) K. S. Puttaswamy v. Union of India that a person’s inherent dignity and right to privacy encompassed preservation of decisional autonomy on matters such as family life, marriage, procreation, and sexual orientation.[ix]

Analysing the problems associated with the proposed amendment

The proposed amendment is legally unsustainable since it is fundamentally arbitrary and introduces unreasonable restrictions on a person’s right to individual liberty. Firstly, it needs to be understood that the amendment’s wording does not align with its purpose. While the amendment is supposed to be applied to only forceful or fraudulent cases of religious conversion before marriage [thus ideally allowing conversions that take place before marriage by free consent], the wording gives a very different impression.

Section 3 of the proposed amendment mentions “conversion by marriage; by getting a person married or by aiding a person to get married”. It leaves no room for cases where there is an instance of conversion/help or aid for conversion before marriage that is done by a consenting individual to marry a person of their choice. This impinges upon an individual’s free choice to marry whomsoever they want, thus affecting their rights under Article 21. It also affects their rights under Article 25, thus penalizing them for choosing a faith for marriage. Most importantly, it does not specify that whose opinion (between the marrying individual and their parents/relatives) would be considered in determining whether the conversion is forceful or not.

The significance of this apprehension is reaffirmed by the factual scenario in Shafin Jahan’s case, where the converted individual and her parents had contrary views regarding her conversion and marriage. Furthermore, taking into consideration the low legal awareness[x] in our country, a common man may not understand these complex legal nuances.[xi] They might gain the impression that even valid instances of conversion for marriage are prohibited. The proposed amendment allows a great degree of interference into an individual’s personal choice by allowing even distant relatives to lodge FIR’s.

Considering the fact that even those instances of conversion before marriage that involve a person’s individual choice face significant opposition from parents, relatives, and society, who mostly do not approve of the same, this provision appears largely regressive. The amendment seems to be carceral, rather than protective. Apart from declaring offences under the act as cognizable [which is generally the case with heinous crimes such as murder and rape] and non-bailable, it also places the burden of proof on the accused. It would not be wrong to say that the amendment, although with a valid motive, is not completely valid in its present form.

Conclusion and Suggestions

It is clear by now that “anti-conversion” laws need to alleviate certain apprehensions before qualifying as valid legislations. While enacting a law that is supposed to serve an important purpose of prohibiting forceful conversions, the state should be careful not to draft vague or ambiguous provisions that may affect individuals who wish to convert and marry on their own will in a valid manner. Ideally, the anti-conversion provision must itself enumerate circumstances when marriage through conversion is valid. People must be educated and be made aware of conversions involving force, coercion or allurement, and their legal implications. These steps might help in ensuring that while valid conversions before marriage involving an individual’s free will are allowed, conversions involving illegal and immoral elements are kept in check. Thus, only those legislations which are considerate of the country’s democratic and secular values must be sustained.


[i]<https://www.livelaw.in/pdf_upload/gujarat-freedom-religion-bill-391340.pdf>.

[ii]Gujarat Freedom of Religion (Amendment) Act 2021 Won’t Apply to Inter-Faith Marriages between Consenting Adults: Gujarat High Court <https://www.livelaw.in/top-stories/gujarat-freedom-of-religionamendment-act-2021-guajrat-high-court-inter-faith-marraige-179886>.

[iii]Gujarat Assembly Passes Freedom of Religion Amendment Bill 2021 <https://www.livelaw.in/top-stories/gujarat-assembly-passes-freedom-of-religion-amendment-bill-2021-172025>.

[iv]Shafin Jahan v. Asokan K.M. and Ors. (2018) SCC OnLine SC 201.

[v] Ibid.

[vi] <https://www.merriam-webster.com/legal/zone%20of%20privacy>.

[vii]Salamat Ansari and Ors v. State of UP and Ors. (2020) SCC OnLine All 1382.

[viii]Shakti Vahini v. Union of India and Ors. (2018) 7 SCC 192.

[ix] Justice K.S.Puttaswamy (Retd.) and Anr. v. Union of India and Ors. (2017) 10 SCC 1.

[x]Increasing Access to Justice for Marginalized People: GoI-UNDP Project <https://doj.gov.in/sites/default/files/Increasing-A2J_0.pdf>.

[xi]Legal Aid and Awareness in India: Issues and Challenges <https://www.legalserviceindia.com/legal/article-82-legal-aid-and-awareness-in-india-issues-and-challenges.html>.


Avikalp Mishra is a 2nd-year law student at National Law Institute University, Bhopal.


Image Credits: Reuters

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