While other high courts and even the Supreme Court have done nothing but issue show-cause notices to governments over their new anti-conversion laws (in truth, laws meant to tackle the bogey of 'Love Jihad'), the Gujarat High Court must be lauded for the swift action it has taken.
Where challenges to laws in Uttar Pradesh, Madhya Pradesh and others saw no interim relief, the Gujarat High Court passed a pithy interim order on 19 August which stayed the main provisions of the law in so far it applies to consensual conversion for marriage.
This timely and sharp interim order by Chief Justice Vikram Nath (elevated to the Supreme Court this very day) and Justice Biren Vaishnav is based on a much-needed dispassionate analysis of the Constitution and settled case laws.
What the Judges Have Done
The judges have not yet passed any final ruling on the constitutional validity of the Gujarat Freedom of Religion (Amendment) Act, 2021, which introduced new provisions to Gujarat's anti-conversion law to prohibit conversions carried out in the course of inter-faith marriages unless permission is taken from local authorities.
However, they have ensured that these new provisions can't be used till that final ruling is passed. In the meanwhile, the Gujarat anti-conversion law will still operate against conversions which are clearly the outcome of fraud, allurement, or coercion.
In the backdrop of a determined, even hostile police force, and an administration with a patriarchal and majoritarian mindset , it should be kept in mind that this order will not be a complete embargo against attempts to punish those who enter into inter-faith marriages where one side converts.
But the order will have some deterrent effect against mischievous prosecutions and arrests even in the interim, till the matter is finally decided – and hopefully this highly questionable law will be given a proper burial at that time.
Gujarat High Court Sees at Outset What Other Courts Have Not
The chief reasons for the decision by Chief Justice Vikram Nath and Justice Vaishnav to act so swiftly are the ways in which the 2021 amendments appear to run afoul of fundamental rights.
Earlier, Section 3 of the anti-conversion law prohibited forcible conversion from one religion to another by use of force, or by allurement or by any fraudulent means. However, after the new amendment, it also prohibited conversion "by marriage or by getting a person married, or by aiding a person to get married".
As the order points out, this prima facie creates a new species of unlawful conversions, which doesn't necessarily have anything to do with a lack of choice (as the original version sought to do, even if in a flawed manner).
Now, conversion merely by marriage or conversion after marriage are also sought to be criminalized. Having identified the creation of this new category of 'illegal conversions by or because of marriage', it is clear that this would be clearly in the teeth of the 2018 Supreme Court decision in Shafin Jahan vs Ashokan – the Hadiya case.
The apex court had said there that every person has the right to marry a person of his or her choice, which right flows from Article 21 of the Constitution which guarantees the right to life and personal liberty.
This includes the life choices of a person as to whom to marry, or love or to be in partnership with, and the right to decide on what to eat or what to wear or a right to practice any belief or faith – even to be an agnostic. All of these are intrinsic rights of the individual and central to his pursuit of happiness, regarding which society has no business to interfere.
The high court order specifically cites the Hadiya judgment when deciding to stay the new provisions (including Section 3) insofar as they relate to conversion by marriage.
Also relevant (though not specifically cited by the judges) is the Supreme Court's landmark nine-judge right to privacy judgment from 2017, where Justice DY Chandrachud's opinion states that not only is the decision to marry integral to the right to dignity and autonomy under Article 21, but that this is intrinsically tied up with the right to freedom of expression under Article 19. Moreover, the court also held there that:
"The Constitutional right to the freedom of religion under article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world."
If one were to keep these principles in mind, it is not surprising that the high court took action against provisions which do not treat conversions in the course of marriage as matters of personal choice, and automatically criminalize such conversions, irrespective of whether the converting spouse has voluntarily decided to convert to the religion of the other spouse.
The other new provision introduced by the 2021 amendment which is specifically viewed with concern by the judges is Section 6A, which places the burden of proof on the parties entering into an inter-faith marriage to prove that the marriage was not solemnized on account of any fraud, allurement or coercion.
According to the interim order, this "puts the parties entering into an inter-faith marriage in great jeopardy."
As answers given by the central government in Parliament, NIA investigations in Kerala and even the results of surveys like the recent Pew Research one show, there is no evidence to substantiate any love Jihad conspiracy theory. It is only a figment of executive’s imagination and a consequence of the of the ideological predilections of the forces blinkering the vision of the law framers.
The Constitutional provisions and the pronouncements of the Supreme Court also confer a right to marry a person of one’s choice irrespective of religion, or to follow a particular religion as per one’s choice.
In these circumstances, the abandonment of the principle of presumption of innocence unless proven guilty and the reversal of the burden of proof on the accused, is wholly disproportionate and unwarranted.
Nor can this reversal of the burden of proof be justified by pointing to other laws where this is done, such as Section 113-B of the Indian Evidence Act (which creates a presumption in cases of death of a married woman within the first 7 years of marriage), or the NDPS Act when it comes to certain drug offences.
In such statutes, however, the presumption is triggered only when a physical fact is proved – such as recovery of a substance (for NDPS Act) and cruelty (when it comes to Section 113-B); and is not dependent on a mere allegation pertaining to state of mind.
This reversal of the burden of proof also therefore appears to fail the test of procedural reasonableness, as laid down by the Supreme Court in the Maneka Gandhi judgment in 1978, which said that the procedure created by a law to restrict the right to personal liberty "must be “right and just and fair” and not arbitrary, fanciful or oppressive".
What Sets This Order Apart: Timeliness
When courts fail to provide effective interim relief or swift final decisions in matters of public concern like these 'Love Jihad' laws, individuals, sections of society, and even the public interest as a whole, all suffer.
Just take Uttar Pradesh's 'anti-conversion' law for example.
According to a report in India Today dated 29 December 2020, within 30 days of its own equivalent of Gujarat's 'Love JIhad' law coming into force, 14 cases were filed, and 51 persons were arrested of whom 49 were in jail at the time of the report. By 8 July 2021, according to the Times of India, this had become at least 80 persons in jail.
No swift interim orders have been passed by the Allahabad High Court or the Supreme Court in petitions filed against the UP law.
Contrast this with when the courts take timely, decisive action.
Recall the efficacy of the suo motu cognizance taken by Justices Rohinton F. Nariman and BR Gavai of the Supreme Court on 14 July regarding the alarming news about the Kanwar Yatra being allowed in UP despite the ongoing pandemic.
The judges questioned the UP Government and called for its reply within two days, as to why it was going ahead with its Kanwar Yatra programme when Uttarakhand had already abandoned it on account of the expected third Covid wave.
When the UP government submitted that it would go ahead with the Yatra on a small scale with prior permissions and Covid protocols, the Court observed in its order dated 16 July that in view of Article 21,
“the health of the citizenry of India and their right to life are paramount. All other sentiments albeit religious are subservient to this most basic fundamental right.”
Following the court's observations, the UP government recalled its decision even for a small yatra for compelling religious reasons and filed an affidavit that the Kanwar Sanghs have agreed to abandon the Kanwar Yatra due to the health issue.
Likewise, recall the order by a Supreme Court bench headed by Justice DY Chandrachud, hearing another suo motu case regarding Covid relief and preparedness, back on 31 May 2021. The judges termed the Centre's liberalized vaccination policy – which required state governments and private individuals to procure and pay for vaccines for 18-44 year-olds – "prima facie arbitrary and irrational".
They also told the government to provide them with the documents regarding the formulation of this policy, including why the whole process required online bookings which many people would not have access to.
A week later, the Prime Minister himself appeared on national television to announce that the central government has again assumed responsibility for procuring and providing vaccines to the 18-44 year-olds.
Again, it was the Supreme Court's order for the immediate release by 5 pm on 19 July (on its very first date of hearing), of Manipur political activist Leichombam Erendro, that ensured the freedom of the activist, who had been in custody under the NSA for two months over a Facebook saying science and not cow dung or cow urine are the cure for Covid.
Not only was he immediately released, the NSA detention order against him was also withdrawn, as the local authorities realised they would face reasoned court observations against their actions – despite this, the apex court has decided to hear Erendro's plea for compensation for illegal detention.
Conversely the non-release on bail of 84-year-old ailing Father Stan Swamy in the Bhima Koregaon case and his eventual death in custody, led to much criticism of the courts and the prosecuting agency, given the delays in considering his requests for bail.
Therefore, speedy final orders or at least effective interim orders are of great moment – and judicial history is replete with examples of how such orders have ushered a ‘change of heart’, even for a powerful government.
(Justice Amar Saran is a former judge of the Allahabad High Court. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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