Right to marry
Recently, the Gujarat High Court stayed key provisions of The Gujarat Freedom of Religion (Amendment) Act, 2021 pertaining to marriages involving religious conversion of either of the two parties.
Laws pertaining to marriages involving religious conversion recently enacted by states face a constitutional challenge. Discuss along with its implication on Indian society.
About the Gujarat Freedom of Religion (Amendment) Act, 2021
● The Gujarat Freedom of Religion (Amendment) Act, 2021 amended the 2003 Gujarat Freedom of Religion Act.
● The laws ostensibly seek to end conversion through unlawful means, specifically prohibit any conversion for marriage, even if it is with the consent of the individual except when a prior sanction is obtained from the state. Apart from UP and Gujarat, Madhya Pradesh and Himachal Pradesh too, have also enacted similar laws.
● The new anti-conversion laws shift the burden of proof of a lawful religious conversion from the converted to his/her partner;,;, and legitimise the intrusion of family and the society at large to oppose inter-faith marriages.
● They also give powers to the state to conduct a police inquiry to verify the intentions of the parties to convert for the purposes of marriage.
● Legal experts have pointed out that the laws interfere in an individual’s agency to marry a partner from a different faith and to choose to convert from one’s religion for that purpose.
● Apart from being vague and sweeping, the laws also test the limits to which the state can interfere in the personal affairs of individuals.
● The freedom to propagate one’s religion and the right to choose a partner are fundamental rights that the new anti-conversion laws impinge upon.
High Court judgement:
● The High Court held 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”.
● The other provisions stayed include 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; 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.
The State Government’s argument:
● The state government had argued that the law did not prohibit all inter-faith marriages, but only the ones based on fraud and coercion. It also argued that the Act must be read as a whole to interpret the provision, and the provision alone could not be read by itself.
● However, the court said that the wider interpretation would happen at a later stage and stayed the provisions for the time being. A larger challenge would determine the fate of the law eventually.
Issues with anti-conversion laws enacted by various states:
● Recent anti-conversion laws enacted by different States aim to criminalise inter-faith marriages by treating them as a means to convert one of the partiesfrom one religion to another.
● While earlier anti-conversion laws (called in some States as laws on ‘freedom of religion’) have always sought to criminalise conversions obtained through fraud, force or allurement, the recent enactments or amendments have created “conversion by marriage” as one of the illegal forms of conversion.
● Under the garb of protecting women from forced conversion, women choosing inter-religious marriages become vulnerable to attacks and intimidation by vigilante groups.
● The law infringes on the constitutionally guaranteed fundamental right to freedom of religion and privacy, which are intrinsic to life and liberty.
● To believe that inter-religious marriages are aimed at religious conversion, then they have an adverse impact on public order.
● They often create a hostile, and on occasion violent, environment for religious minority communities.
Article 25 says that all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion. The implications of these are:
Freedom of conscience: Inner freedom of an individual to mould his relation with God or Creatures in whatever way he desires.
Right to profess: Declaration of one’s religious beliefs and faith openly and freely.
Right to practice: Performance of religious worship, rituals, ceremonies and exhibition of beliefs and ideas.
Right to propagate: Transmission and dissemination of one’s religious beliefs to others or exposition of the tenets of one’s religion. But, it does not include a right to convert another person to one’s own religion. Forcible conversions impinge on the ‘freedom of conscience’ guaranteed to all the persons alike."
● The principle that the right to marry a person of one’s choice is integral to Article 21 flows from the verdict in Shafin Jahan vs Asokan Case.
● Government should enact unambiguous/clear laws that prevent forced/fraudulent religious conversions without interfering in the personal affairs of individuals.