[Updated]
Gujarat Govt asserts it has no political agenda, will move Supreme Court
Gujarat High Court on Thursday refused the state’s plea to rectify its earlier order of putting a stay on the operation of key sections of the “anti-love jihad” law relating to interfaith marriages, and the BJP government asserted that there was no political agenda behind the legislation.
While protecting interfaith marriages by consenting adults from the rigours of the Gujarat Freedom of Religion (Amendment) Act, 2021, the Gujarat High Court on August 19 had prima facie observed that the law “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 division bench that summarily rejected the state’s plea on Thursday was led by Chief Justice Vikram Nath, who was elevated to the Supreme Court on the same day.
Hours later, state home minister Pradeepsinh Jadeja issued a statement: “The Gujarat Government has no political agenda (in bringing the Gujarat Freedom of Religion (Amendment) Act) but it is for the safety of our daughters and sisters who are being trapped by vested interests. We will challenge the High Court’s order in the Supreme Court.”
The statement added: “Some vested interests have filed petitions in the Gujarat High Court to create confusion and misunderstanding while our intention is to protect our sisters and daughters.”
The court, responding to the rectification application filed by the Gujarat government, ruled: “We don’t find any reason to make any changes in the order.”
State Advocate-General Kamal Trivedi was arguing for changes in the stay order on the operation of Section 5.
He submitted that Section 5 had little to do with marriages but about the need for a district magistrate’s permission to any individual wishing to convert to another religion without force and allurement.
With the August 19 stay order, even this provision will not be operational.
To this, the division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav pointed out that the stay order was not entirely on Section 5 but on its invocation in the cases of marriage without force or allurement.
Appearing for the petitioner, Senior Advocate Mihir Joshi argued that if Section 5 of the Act was not included in the stay order, then the court’s entire order would not operate and thereby, the order of the court becomes unworkable.
He also argued that if somebody wants to get married outside their religion, the presumption is that it is unlawful unless permission is taken under Section 5. Since the court has stayed Section 5 only in relation to marriage solemnised between consenting adults, the provision will not be deemed to be stayed for individual conversions, he added.
The Chief Justice summed it up in layman’s language thus:
“Supposing X is a bachelor, he wants to convert, he would require permission under Section 5 of the Act, we have not stayed that. Only permission for marriage has been stayed. Read what we said, we said the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnised by a person of one religion with another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.”
The operative part of the Gujarat High Court’s August 19 order is:
“After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because marriage is solemnised by a person of one religion with another religion without force or allurement or fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion. The above interim order is provided only on the lines of the arguments made by the learned Advocate General Mr.Trivedi and to protect the parties of inter-faith marriage from being unnecessarily harassed.”
Here is the August 19 order:
