By Athik Saleh
Published On: August 28, 2021 13:53 IST
On 19th August 2021, the Gujarat High Court came into the forefront of a national issue. An issue that was once propaganda of few right-wing activists which then became a policy of few state Governments.
Love jihad, which was once an issue that was discussed by those elements that were in the fringes has now become an issue that is being discussed by front-line politicians, the church, etc. It reached a different height when state governments including the Uttar Pradesh, Uttarakhand, and Madhya Pradesh Governments passed legislation to thwart the attempts of religious conversions using marriage as a front.
The latest state to enter the club was Gujarat when it passed the Gujarat Freedom of Religion (Amendment) Act, 2021. The Amendment was made on the original Gujarat Freedom of Religion Act, 2003. The Act came into force on June 15, 2021.
The High court put a dent in the ambitions of the Gujarat Government when it passed an interim stay on the implementation of certain sections of the Act.
The court’s order is the first time the judiciary has intervened in the passage of legislation that criminalized inter-faith marriages. In a time when criminalization of interfaith marriages becomes an election promise, the court’s interim stay gives the society and the proponents of such legislation, a moment to take a break and think.
For those of us who have been watching this show from the sidelines, the order by the High Court allows us to delve deeper into the issue. It is imperative to understand what the impugned Amendment proposed and why the court found it necessary to order a stay.
Apart from the legal side of this issue, it may be useful to understand how what was once propaganda became a policy issue.
What are the Amendments made to the Gujarat Freedom of Religion Act, 2003?
The Gujarat Freedom of Religion Act, 2003 is an Act that dealt with forcible conversions. The Act made the involvement of the District Magistrate mandatory in matters of conversion. According to the act, conversion by means of forces, allurement, or fraud was made punishable.
The Amendment was introduced to tackle the issue of ‘love jihad’ as it has been known. What is ‘love jihad’? It is allegedly a practice through which Muslim men wage ‘jihad’ or the ‘holy war’. Instead of taking arms, they allegedly marry Hindu women with the sole purpose of converting them into Islam.
The Gujarat Freedom of Religion (Amendment) Act, 2021 added few new provisions into the Original Act to tackle the problem of ‘love jihad’ and they are as follows.
- Section 3 of the Original Act prohibited conversion using force, allurement, or fraudulent means. The Amendment included conversion in the cloaked by marriage in the category of prohibited conversions. The Amendment also added Section 3A to the act. This provision talks about the lodging of complaints in case of conversions. According to this section, any person including parents, brother, sister, or anyone related (by blood or adoption) can file an FIR against the person.
- Section 4 of the Original Act talked about punishment in case of violation of Section 3. The punishments provided under Section 4 of the Act are 3 years and up to Rs. 50,000 in normal cases and 4 years and up to Rs. 1,00,000 in the case of women, minors, or someone belonging to Scheduled Castes or Scheduled Tribes.
- The Amendment added Section 4A to the Act which talks about punishment for marriage by unlawful conversion. Accordingly, the punishment ranges from three to five years of imprisonment and a fine not less than Rs. 2,00,000.
- Another addition to the Act by the Amendment in Section 4B which talks about ‘marriage by unlawful conversion. The Amendment grants power to a Family Court or any other Court having jurisdiction in the absence of Family Courts to declare marriage done by unlawful conversion void.
- The Amendment added Section 6A to the Act. Section 6A talks about the shift of the burden of proof. Accordingly, it will be on the person who did not get converted to prove that the conversion of the other person was not affected through misrepresentation, coercion, undue influence, allurement, or fraudulently. Also, where conversion was facilitated by an act, omission, aid, abetment, or counseling, the burden of proof will be on the person who facilitated the conversion.
What did the Court say about the Amendments made to the Gujarat Freedom of Religion Act, 2003?
The Gujarat Freedom of Religion (Amendment) Act, 2021 invited widespread criticism from different corners of society. However, it found supporting voices from other corners as well. It was unimaginable that the legislation won’t be subjected to judicial scrutiny as some of the amendments’ provisions were in (supposedly) direct conflict with fundamental rights guaranteed by the Constitution.
A writ petition was filed in the Gujarat High Court by Jamiat Ulama E-Hind and Muhahid Nafees[i]. A bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav heard the petition challenging the provisions added by the amendment.
As expected, the Government defended the Amendment to the Act. The Advocate General who appeared for the Government argued that the Act was to protect those who are forced into conversion in the pretense of the marriage. It argued that the Act does not affect the rights of those couples who married consensually.
The Government was also of the opinion that most of the criticism aimed at the Amendment was from people who were intimidated by the Act’s potential to harm those who married without the right intention. In its defense, the Government contended that the Act must be read as a whole and shouldn’t be nitpicked.
However, the Court had a different opinion about the amendment. In the interim order passed, the Court stayed the operation of Sections 3, 4, 4A to 4C, 5, 6, and 6A. In the order passed, the court held that the operation of the aforementioned sections of the Act meddled with the individual’s right of choice and by extension infringes Article 21.
The Court did not go into the Advocate General’s argument that the Act must be read as a whole as the order passed was an interim one. The Court decided that wider reading and interpretation will happen at a later stage.
Against the Advocate General’s argument that the provisions of the Act, especially the amended Section 3 deal with only those inter-faith marriages that are solemnized using force, fraudulent measures, etc., the Court opined that a bare perusal of the provision gives the idea that any marriage accompanied by conversion (either before or after) will be considered unlawful. This, according to the court, was a violation of the fundamental rights of the couple.
The Court, in its order, also spoke about public perception. It said how it will be hard for a layman to understand the difference between a marriage not targeted by the Act and one that is targeted. According to the Court, every marriage with an element of conversion will appear to be unlawful for the common man.
In short, until another order or judgment, the Court suspends the operation of those provisions added by the Amendment to the Act.
‘Love Jihad’ – A Journey from Propaganda to Policy
When two words that are not meant to be strung together are strung together, unfortunate results may follow. No, this is not a famous saying but anyone who first sees or hears ‘love jihad’ might feel that way.
A word that was popularized by Hindutva fringe elements like Pramod Muthalik of Shri Ram Sena and the now UP Chief Minister Yogi Adityanath in his earlier avatar as the chief of Hindu Yuva Vahini. They vocalized their concerns about the conversions of Hindus to other religions such as Islam and Christianity.[ii]
They found a word that popularized their concern – ‘love jihad’. They questioned marriages between couples belonging to a different faith. Soon, this became a favorite issue for those majoritarian fringe groups who like to play to the majority’s insecurity of them being overtaken by a minority. One might ask – is it possible for the majority to have such a fear?
That’s where human psychology comes into play. No matter whether one belongs to the majority of the minority, they will have their own insecurities. It is this insecurity that fringe Hindutva elements tried to use.
The issue of ‘love jihad’ lost its flame for few years before being ignited after the BJP coming into power in different states and at the Centre in 2019. Yogi Adityanath was the first one to bring up legislation to tackle the issue of ‘love jihad’. Soon, other states like Uttarakhand, Madhya Pradesh, and lastly, Gujarat followed suit. There are states like Karnataka that are considering bringing on such legislation.
Most of these State Governments argue that these legislations are not targeting those inter-faith couples who are married consensually and out of love but those who use fraudulent means or force to covert one party in the pretense of marriage. The laws do not explicitly state that they are aimed at men facilitating the conversion of women, but if you take a look at one of the most frequently asked questions by the sympathizers of these legislation’s, it will become clear that they target men.
The question that many who supports the idea of existence of ‘love jihad’ in India ask is, why do very few Muslim women marry Hindu men? Answering this question will need a different discussion about the sociopolitical condition of Muslim women in India. It could be true that more Muslim men marry Hindu women, however before jumping to conclusions, one must look at certain statistics. As per the 2005 Sachar Committee, Muslim women disappear from formal education the first and are the last to enter organized workforce. Even with all the development that has been going around them, it is still a common occurrence amongst Muslims that women are denied access to men or vice versa.[iii]
From propaganda, this issue has become a policy matter. It has led the state to become pugnacious and brazen in its attempt to blur the line between public life and private life. It might as well be true that these legislation’s were meant to tackle forcible conversions but as the Gujarat High Court said, it will be hard for the common man to keep a track of what is lawful and what is unlawful.
In a country like India where despite having a composite society from time immemorial, the tensions between different faiths still run high, it is juvenile at best to bring on a law to check inter-faith marriages. In a country where the Special Marriage Act makes it mandatory to put up a public notice 30 days prior to the marriage, it does not require another law to check on marriages between an inter-faith couple.[iv]
The Gujarat High Court’s interim order gives a temporary respite to those couples who were being threatened by the amendment. The Amendment gave the police the power to inquire about the legitimacy of the marriage. It then shifts the burden of proof to the person who did not convert to prove that the conversion of their partner was their own choice. The order, at least, for the time being, put this to rest.
A larger question remains though – what happens when propaganda without statistical backing or concrete proof becomes policy? Well, that is something only time can tell.
References
- indianexpress.com
- theleaflet.in
- thefinancialexpress.com
- livelaw.in
- thefactly.in
- theindianexpress.com
- indialegallive.in
- scconline.com
- indiatoday.in
To read the 2003 Act:
[embeddoc url=”https://www.indiacode.nic.in/bitstream/123456789/4660/1/freedomofreligion.pdf”]
[i] Jamiat Ulama E-Hind Gujarat Vs. State of Gujarat, R/Special Civil Application No. 1011 of 2021
[ii] Rajdeep Sardesai, “Love jihad: Celebrate love, don’t criminalise it”, India Today, available at: indiatoday.in (last visited on August 27, 2021)
[iii] Ghazala Wahab, “How ‘love jihad’ went from being propaganda to policy”, The Indian Express, available at: indianexpress.com (last visited on August 27, 2021)
[iv] Anushree Jairath,” How Special Marriage Act is condemning interfaith couples to UP-style anti-conversion laws”, ThePrint, available at: theprint.com (last visited on August 27, 2021)