Arpit Sarangi
The Chief Justice of India in a recent lecture observed that “law can be used not only to render justice, it can also be used to justify oppression.” He went on to say that a Rule passed by Parliament can be classified as ‘Law’ only if it embraces the principle of justice and equity. A ‘Just Law’ would have higher legitimacy and acceptance than an ‘Unjust Law’ even if the latter elicits the adherence of some segments of society to the detriment of others.
It is in this context that the recent order of the Gujarat High Court staying the implementation of the Gujarat Freedom of Religion (Amendment) Act, 2021 (Hereinafter, Amending Act) amending the Gujarat Freedom of Religion Act, 2003 (Hereinafter, Act 2003) has to be understood. Section 3 of the Act 2003 outlawed the use of coercion, allurement, or fraudulent means to convert an individual from one religion to another. The Amending Act amended Section 3 of Act 2003 to provide that even conversion by marriage would be considered as an act of forceful conversion.
When the said Amending Act was challenged in the Gujarat High Court by a religious organisation named Jamiat Ulama-e-Hind, the Court observed that a plain reading of Section 3 of Act 2003 post amendment would suggest that a “marriage itself and a consequential conversion is deemed as an unlawful conversion.” Hence, the Court held that merely because a conversion takes place post marriage, it cannot be termed as an unlawful or forceful conversion. It also infringes upon the right to choice as provided under Article 21 of the Constitution.
The Court relied upon the case of Shafin Jahan v. Ashokan (Hadiya case). The facts of the case were that Hadiya was the daughter of Ashokan. She left her hometown in Kerala to study Homoeopathy at Salem, Tamil Nadu. One day, the family noticed that she was unwilling to participate in Hindu rituals. One month later, her father received information that she has started attending classes in ‘purdah’. Later, it was also found that Hadiya had married Shafin Jahan and was planning to travel to the Middle East. The dispute finally went to the Supreme Court where the basic question that arose was whether the father’s right to protect the interest of his daughter would prevail over the adult daughter’s own right to choice?
The Court interacted with Hadiya and found her to be devoid of any mental incapacity or vulnerability. It gave a lot of importance to the fact that Hadiya was a major and was capable of deciding her future. The Court observed that social values and morals are important but they cannot override the constitutionally guaranteed freedom to marry a person of one’s choice as provided under Article 21 of the Constitution. The government may regulate the conditions of valid marriage or procedure to annul a marriage. However, neither the government nor the society has any power to determine the partner of an individual or the person one loves. Social approval is not required to recognise intimate personal decisions. Hence, the Court finally observed that the marriage between Hadiya and Shafin stands valid and neither her father nor the State can be allowed to interfere in their personal choice.
The Lata Singh v. State of UP is another relevant judgement. In this case, the Supreme Court went on to clearly observe that once an individual becomes a major, he/she can marry according to his/her likes. If parents do not approve, the most they can do is to cut off social relations with their children. They cannot threaten or commit violence against the couple.
The Gujarat High Court order although not final and binding comes as a solace to interfaith couples living in fear. The Court has rightly stood up as the custodian of the citizens’ rights. The Amending Act is against numerous Supreme Court judgements and legitimises an unjust rule as described by the Chief Justice of India. It creates a scenario where the “legislator becomes the transgressor.”
Our Constitution’s strength stems from its recognition of our culture’s multiplicity and diversity. Individual decisions about whether or not to marry and whom to marry are outside the State’s jurisdiction. The intervention by the State in such issues has a significant chilling impact on the exercise of liberties and freedom of choice guaranteed by the Constitution. Let’s not allow fear to silence freedom.
The writer is BA LLB, Hidayatullah National Law University. Views are personal.
