- The Hon’ble Supreme Court, in the case of State of Gujarat v Jamia Ulama-E-Hind Gujarat and others [SLP(C) No. 019945 - 019946 /2021], has issued a notice on the Special Leave Petition (SLP) filed against the order of the Hon’ble High Court of Gujarat (HC) which observed that anti-conversion law shall not apply to consenting inter-faith marriages between two adults.
- In its order dated 19 August 2021, a division bench of the HC made an observation that the provisions of the Gujarat Freedom of Religion (Amendment) Act,2021(Amendment Act) infringes the rights laid down under Article 21 of the Constitution by interfering with the intricacies of marriage including an individual’s right to choose.
- The Bench also made an observation that under the Amendment Act “marriage inter-faith followed by conversion would amount to an offence under the 2003 Act. Marriage itself and a consequential conversion is deemed as an unlawful conversion attracting penal provisions.”
- The Bench further noted that since Section 6A of the Gujarat Freedom of Religion (Amendment) Act, 2021 (Original Act) put the burden of proof on the parties to the marriage to prove that the marriage was not solemnised using any fraud, coercion or allurement, this again put inter-faith couples under great jeopardy.
- The HC also held that the State’s interpretation that the Act deals only with such conversions pursuant to inter-faith marriage which are by way of allurement, force or by fraudulent means "may not be understood by the common man". The HC further remarked that a common man may perceive every conversion on account of an inter-faith marriage as prohibited.
- The order of the HC was passed pursuant to a writ petition filed by Jamiat Ulama-E-Hindand Muhahid Nafees challenging the provisions of the Original Act. Later, the Government of Gujarat filed an application seeking rectification of the order to the effect that permission of District Magistrate under Section 5 should be mandatory for conversion owing to inter-faith marriages.
- The HC rejected the rectification application filed by the State and affirmed its earlier position that permission of the District Magistrate was not required where conversion took place owing to marriage.
- Challenging the impugned order of the Gujarat HC, the State Government approached the SC to decide the matter.
- A Bench comprising Justices S Abdul Nazeer and Krishna Murari considered the matter on Monday (14 Feb) and issued notice to Jamia Ulama-E-Hind Gujarat and other private respondents who have challenged the law before the HC. Meanwhile, the Solicitor General appearing on behalf of the State submitted that it is not the right time to hear the matter.
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