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Gujarat High Court Has Stayed ‘Love Jihad’ Law Provisions. Hear From The Petitioner

Hindu Jagran Manch stages a protest against the practice of "Love Jihad" in Indore on 24 August.

The Gujarat High Court on August 19 stayed amended provisions of the Freedom of Religion Act, 2003, which lay down more stringent punishment for forcible or fraudulent religious conversion by marriage, widen the net of complainants to “any aggrieved person,” places the burden of proof on the accused, and mandates permission from the District Magistrate to convert to a different religion. 

On 25 August, after the state government moved the High Court for removing the stay on the provision for seeking permission for conversion from the DM, arguing that it applied irrespective of marriage, the division bench of Chief Justice Vikram Nath and Justice Biren Vaishnav upheld their order of August 19, saying that the stay applied only in the context of marriage. 

The so-called “love jihad” law was passed by Gujarat lawmakers on 1 April 2021, with Home Minister Pradipsinh Jadeja saying that Hindu women were being lured into marriage with the intention of religious conversion and that foreign funds were being used. 

The Narendra Modi government has told Parliament that there is no crime like “love jihad” in India and no such case has been reported by central agencies. Still, the ruling Bharatiya Janata Party (BJP) governments in Uttar Pradesh, Uttarakhand, Madhya Pradesh, and Gujarat, have passed laws or made existing laws more stringent  to combat the so-called “love jihad.” These have been challenged in the Supreme Court. The UP law has also been challenged in the Allahabad High Court. 

Gujarat’s High Court order is the first stay on enforcement of the law in a state. 

Mujahid Nafees, one of two petitioners challenging the law in the Gujarat High Court, said that even though there was no data to prove that there was any such thing as “love jihad,” politicians of the ruling party keep using the word “jihad” to make Muslims out to be villains. The Home Minister’s remarks, Nafees said, were  “deeply hurtful” to Muslims in Gujarat. On 2 April, the day after the Bill was passed in the state Assembly, Nafees wrote to Acharya Devvrat, Governor of Gujarat, asking him not to sign the bill, and to stop politicians from using the word “jihad” to target Muslims. 

Noting that the Home Minister did not give any concrete figures or data, the letter said, “The fundamental spirit of this law is the violation of religious freedom. The political conspiracy by masculine political leaders to impose their parochial agenda on the choice of women is more visible. Sir, choosing marriage to anyone, following any religion is a fundamental pillar of personal freedom.”

Sir, choosing marriage to anyone, following any religion is a fundamental pillar of personal freedom.

After Devvrat signed the law, Nafees, a social activist based in Ahmedabad, decided to move the Gujarat High Court.

On 23 June, two petitions were filed in the Gujarat High Court — one by the Jamiat Ulema e Hind Gujarat and the second by Nafees and his Minority Coordination — challenging the law. The two petitions were merged on 5 August 2021. The advocate on record is Muhammad Isa M Hakim.

“The speech that the Home Minister gave really hurts every secular citizen,” said Nafees. “We thought that there is a plan to divide the two communities, and we will have to stop it.” 

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Nafees, who hails from Badaun in Uttar Pradesh, and is a father to a two-year-old girl, has been working to promote human rights in Gujarat for over a decade. In 2016, Nafees founded the MCC an organization that works for the constitutional rights of minorities in the state. 

“Our whole argument was that for two adults, who they will marry, and whether they have to convert, is a fundamental right. They have the right to life, and the right to lead a dignified life,” said Nafees. “How can you stop two adults from getting married? How can you say they have to take permission from the state first? How can the state put a wall between two adults? We are challenging the constitutionality of such a law in a secular democratic country.”

On the provision that widens the net of complainants to “aggrieved persons,” Nafees said, “But this is not our system. The victim has to file a complaint. Otherwise, you are paving the way for a slew of frivolous complaints.” 

How can the state put up a wall between two adults?

READ: Umar Khalid Bail Hearing – Prosecution’s ‘Best Evidence’ Had To Be Produced By The Defense, Says His Lawyer

Court speak 

Chief Justice Vikram Nath and Judge Biren Vaishnav observed that under Section 3 of the 2003 Act, there was a prohibition of conversion of any person from one religion to another religion by use of force or allurement or by any fraudulent means, but after the amendment in April 2021, the marriage itself is presumed to be a medium for the purposes of unlawful conversion if the marriage was by way of allurement, force or by fraudulent means. A plain reading of Section 3 would indicate that any conversion on account of marriage is also prohibited, the judges say. 

“… we feel that inter-faith marriage 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,” they say. 

The operative part of the judgment says, “We are therefore of the opinion that, pending further hearing the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A shall not operate merely because a marriage is solemnized by a person of one religion with a person of another religion without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.”

READ: Delhi Child Rape – A Glimpse Into The Dalit Girl’s Hard Life

For future generations 

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On why he mounted the battle against the law, Nafees said, “People say, ‘Why are you doing this? Your time goes, your energy goes.’ But we want to challenge unconstitutional laws, otherwise, how will young people and future generations know about their rights and the principles of secularism and pluralism on which this country was founded. We wanted to stop it now so they don’t do it in the future.” 

In the coming weeks and months, the court will hear further arguments before deciding whether to strike it down. 

“I am very happy with the decision,” said Nafees. “We will move ahead to secure the freedom that two individuals have to marry in this country.”

Nafees said that the petition against the “love jihad” law also spoke to overarching concerns of diluting existing rights. 

“Why is the state trying to curb the citizens of their own country? How is it possible that they want to remove existing rights? Why would they force women to live in a patriarchal society, where her choice of a partner is questioned by the state?” said Nafees. “That young Indians may grow up thinking this is the reality of the country makes me very sad. It is personal.” 

Nafees said that in addition to human rights activists, it was “critical” for people to be involved in challenging laws and policies that further divide religious communities and violate constitutionally guaranteed freedoms. 

“We got a good Constitution after independence. It is worth saving,” said Nafees.

We got a good Constitution after independence. It is worth saving.

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