The Gujarat government, buoyed by a recent Supreme Court observation that forcible or fraudulent religious conversion will ultimately affect national security, is pushing for the revival of a provision which requires a District Magistrate’s prior permission for converting or “taking part” in a ceremony involving religious conversion.
The operation of Section 5 and several other key provisions of the Gujarat Freedom Of Religion Act, 2003 was stayed by the State High Court in August last year. The High Court had upheld “the right to choice of an individual”.
Section 5 had required a person taking part, “directly or indirectly”, in a “ceremony” involving religious conversion to apply for permission to the District Magistrate concerned. Thereafter, the person who had renounced his/her faith should intimate the District Magistrate. Violations had attracted punishment of imprisonment extending to a year or fine of ₹1,000 or both.
The High Court, in its order, concluded that prima facie the 2003 Gujarat Act gave the common man the impression that an inter-faith marriage followed by conversion would amount to an offence. The High Court had reminded the State of the apex court’s decision in the Shafin Jahan case that “the right to marry a person of one’s choice was integral to Article 21 [right to life and dignity]”.
The State government had appealed to the Supreme Court. An apex court Bench led by Justice S. Abdul Nazeer had issued notice on February 14, 2022. However, the case had not been taken up since.
This was when another Bench, led by Justice M.R. Shah, made the striking remark in a separate public interest litigation (PIL) petition filed by advocate Ashwini Upadhyay on November 14 about forcible religious conversion being a “very serious issue which may ultimately affect the security of the nation and violate citizens’ right to freedom of conscience and right to freely profess, practice and propagate religion”.
On December 3, the Gujarat government filed an affidavit in Mr. Upadhyay’s case, complaining that the High Court’s stay of Section 5 had even affected “cases where marriage is solemnised by a person of one religion with a person of another religion without force or by allurement or by fraudulent means”. That is, even voluntary inter-faith marriages were stymied by the High Court order.
The State described Section 5 as a benevolent provision which enabled “a person to get converted from one religion to another religion on his own volition”. In fact, it said the “exercise of taking prior permission obviates forcible conversion and protects the ‘freedom of conscience’ guaranteed to all the citizens of the country”.
Then the affidavit slowly expanded to draw the attention of the court to the whole of the 2003 Act and its purpose, which, it said, was to “control and curb the menace of organised, sophisticated large-scale illegal conversions in the State of Gujarat”.
It said the objective of Section 5 and the entire 2003 Act was to “maintain the public order within the State of Gujarat by protecting the cherished rights of vulnerable sections of the society including women and economically and socially backward classes”.
The State said the High Court order had “frustrated” the whole purpose of the Act.
“The right to freedom of religion does not include a fundamental right to convert other people to a particular religion,” the State said, and it “certainly does not include the right to convert an individual through fraud, deception, coercion, allurement”.