The Gujarat High Court has in its order dated 19 August 2021 stayed certain provisions of the Gujarat Freedom of Religion (Amendment) Act of 2021. This amendment sought to amend the Gujarat Freedom of Religion Act of 2003.
Before I begin to discuss this judgment and why it is relevant I need to point out that it pains me that even after 75 years of independence, Indian society is not yet at a point where religion is viewed as purely a private matter. In fact, in India the growing trend across all communities appears to be that religion is now an affair of State. It’s not surprising that states passing such laws to ostensibly protect people from “conversion”.
The first question we need to ask is, what is there to be protected from at all? If religion is a matter of conscience, surely no amount of force, fraud etc may bring a change in conscience? If religion is something that can’t be proven by science, or as religious apologists claim, “is beyond the scientific method”, can anyone actually ever fraudulently change their religion?
Religious belief, being something that is abstract and a purely private matter, is something that cannot be subject to judicial scrutiny. I could change my religion to whatever I want to and continue to believe in my changed religion even if the Supreme Court declares my conversion was “unlawful”. After all, how are they going to enforce it? There is presently no way to see into my mind.
To put it bluntly. I could think of “a”.
A court could say that I am unlawfully thinking about “a” since I should originally be thinking about “b” and would have no way to enforce it. These laws are by design an exercise in futility. They aren’t about religion at all. They are about communities who define themselves on the basis of religion.
The State via these laws is interfering in the ability of people to freely move communities in the name of ostensibly protecting these communities. It is the very antithesis of melting pot diversity and a move to try and preserve rainbow diversity. Where everything is not in one melting pot but is visibly separate.
The existence of these laws is living proof that India doesn’t have a composite culture.
We are heavily divided on communal lines and the refrain that all communities in India get along with each other is fundamentally false. What this will mean for the future of this country is not something I want to speculate on.
Coming back to the judgment. Gujarat via the amendment had introduced a new provision to the Act. Section 3 of the unamended Act made it an offence to convert or attempt to convert anyone from one religion to another by allurement or by fraudulent meals. The amendment expanded this to also capture marriages which resulted in conversion and prohibited the conversion if the marriage was by way of allurement, force or by fraudulent means.
The legislature of Gujarat also decided that inter-faith couples who got married and where one party later converted, had to prove that the conversion was lawful. This reversed the burden of proof and permitted all sorts of relatives to file FIRs against such “unlawful conversions”.
The petitioners have challenged this amendment on various grounds but this order relates to the stay. The Gujarat government tried to argue that the law would only affect cases where fraud or coercion was present and also said that there are safeguards like the sanction of a District Magistrate being needed to initiate a prosecution.
However, the court looked at the burden of proof and said that to a common man this may read like a prohibition on inter-faith marriages and accordingly the law needed further examination. So, it stayed the operation. This is not a comment on merits by the court. The law could be upheld by the court at a later date when the petition is finally decided. So there is nothing for anyone to celebrate about on any side.
In any event, this reverse burden of proof is always going to be a hard thing to pull off in a country where marriage is considered a right, something the court made reference to while granting the stay. This judgment of the Gujarat High Court reflects everything that is wrong with India’s right-wing.
Unlike proper fascists, India’s right wing are a bunch of highly inefficient fascists who also lack style. A good fascist is supposed to twist the law to their advantage to further their brand fascism. That’s what Hitler did. He was a terrible person but was a highly efficient fascist he twisted the German Constitution apart to the point where he lawfully did everything he did.
Remember, obedience to law is an important right-wing value. India’s fascists are disorganised and disjunction. They aren’t really good at being fascists. This judgment just drives the point home.