The High Court of Gujarat in its recent order dated 19.08.2021 passed in the case titled as "Jamiat Ulama-E- Hind Gujarat Versus State of Gujarat" has vide an interim order that has stayed the operation of the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A of the Gujarat Freedom of Religion Act, 2003 as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021 and has directed that the aforementioned provisions of the Act shall not operate until the final outcome of the writ petition due to the reason that, the marriage solemnized by a person of one religion with a person of another religion without force or by allurement or by fraudulent means cannot be termed as marriages for the purposes of unlawful conversion. The said interim order has been passed in order to protect the parties solemnizing marriage inter-faith from being unnecessary harassed. Before we understand the order which has been passed by the High Court it is important to understand a brief history behind the laws pertaining to religious conversion in India.

Brief Background & Existing Legal Position:

India is a secular and multi- religious country and the right to freedom of religion has been accorded constitutional protection under Article 25 to 28, of the Constitution of India which are provisions of significance on freedom of religion. It is also important to mention herein that the religion is not defined in the Indian Constitution but the term has been explained by way of judicial pronouncements. The Constitution guarantees freedom of religion to every individual residing in India with certain limitations where the State can regulate under Article 25(2)(a) the activities of an economic, commercial or political character although the same maybe associated with religious practices.

The Apex Court in a case titled as "Ratilal Panachand Gandhi v. State of Bombay' had made the provision of Article 25 clearer by confirming that every person has a fundamental right under Constitution of India to not only entertain religious belief as may be approved by his judgment or conscience but also to exhibit the same and propagate his religious views for the edification of others.

Further in case titled as 'Digyadarsan Rajendra Ramdassji v. State of Andhra Pradesh', the Apex Court held that right to communicate a person's belief to another person or to expose the tenets of that faith, would not include right to convert another person to former's faith. Therefore, it came to be judicially established that although propagation enjoys constitutional protection under the right to freedom of religion but conversion does not.

Now, in general, the Anti-Conversion laws seek to prevent religious conversion of any person brought about by coercion or inducements or by fraudulent means. The Laws restricting religious conversions were originally introduced in India by Hindu princely states during the British Colonial period (1930-40) primarily to preserve Hindu religious identity in the face of British missionaries, some of the laws from that period include the Raigarh State Conversion Act, 1936; the Surguja State Apostasy Act, 1942; and the Udaipur State Anti- Conversion Act, 1946.

Analysis of the Order of Gujrat High Court

In the light of the background and legal position in relation to the law of religious conversion, it can be reasonably concluded that the operation of recent amendments in the year 2021 to the Gujarat Freedom of Religion Act, 2003, have been stayed by the Gujarat High Court and while staying the said operation of the amendments, 2021, it has also made certain prima facie observations in relation to Section 3 of the 2003 Act which are as follows:

  • Section 3 of the Act as was brought into force in April 2003, 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.
  • By amended Act of 2021, prima facie pending the final outcome of the case, a plain reading of Section 3 of the 2003 Act, would show that marriage interfaith followed by conversion would amount to offence under the 2003 Act. Marriage itself and consequential conversion is deemed as an unlawful conversion attracting penal provision.
  • Reference was also made to an excerpt from the case of "Shafin Jahan vs. Ashokan reported in (2018) 16 SCC 368", wherein the Apex Court had observed that right to marry a person of ones choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity.
  • Section 6A of the 2003 Act places the burden of proof on the parties entering into an interfaith marriage to prove that the same was not solemnized on account of any fraud, allurement, coercion. This puts the parties validly entering into an interfaith marriage in great jeopardy.
  • Prima facie interfaith marriages between two consulting adult by operation of the Section 3 of the 2003 Act interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution of India.


We observe, that the High Court of Gujarat has further expanded and explained the law on conversion and has gone on to strike of balance between right to life as enshrined under Article 21 and freedom of religion (with its limitations such as forceful religious conversion) as per the respective state law i.e. Gujarat Freedom of Religion Act, 2003 as amended by the 2021 Act. We also observe that though religious conversion per se may not be a fundamental right (as held in Stanislaus case) but an individual has the freedom to profess / follow any religion that appeals to his faith and conscience as long as such faith or decision to profess / follow the said any religion (by way of religious conversion) is not dependent upon elements such as fraud, coercion and allurement.

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