Gujarat High Court observes that the state’s anti-conversion law prima facie interferes with marriage & right to choice, infringes Article 21
Sai Krishna Muthyanolla
August 25, 2021
In this roundup of court judgements, we look at Constitutional Courts’ remarks & directions on Gujarat’s anti-conversion law, vacancies and pendency in State Information Commissions, and police interrogation of school children. In a significant decision, the Madhya Pradesh high court directed State to provide assistance to transgender in getting their Identity cards, ration card an Aadhaar card.
Gujarat HC: Gujarat anti-conversion law prima facie interferes with marriage & right to choice, infringes Article 21
In the case Jamiat Ulama-e-Hind Gujarat Vs. State of Gujarat, the high court prima facie observed that the Gujarat Freedom of Religion (Amendment) Act, 2021 ‘interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India’.
The law under challenge is the Gujarat Freedom of Religion (Amendment) Act, 2021. The legislation amended the Gujarat Freedom of Religion Act, 2003. The amendment was brought in line with several similar laws enacted last year, starting with Uttar Pradesh.
Advocate General appearing for the State submitted, as per the new amendment, marriage per se is not prohibited but a conversion actuated by fraud or allurement, or a forcible marriage is prohibited. The focal point is the conversion by force or a fraudulent marriage or marriage by allurement. The state argued that the mechanism of investigation is well equipped by checks and balances as no prosecution is instituted except with the previous sanction of the District Magistrate. The offences under the Act shall not be investigated by an officer below the rank of a Deputy Superintendent of Police.
According to the Advocate General appearing for the State, without an element of fraud, allurement, or coercion, a marriage inter-faith followed by conversion would not amount to unlawful conversion and as such would not be hit by the penal provisions.
In response to this, the Senior Advocate of the petitioner pointed out that Section 3 of the 2003 Act already prohibited the conversion of any person from one religion to another religion by the use of force or allurement or by any fraudulent means. By the Amending Act of 2021, a 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. Therefore, the Senior Advocate of the petitioner asserted that marriage itself and a consequential conversion is deemed as an unlawful conversion attracting penal provisions, according to the new amendment.
Upon considering all submissions, the bench of Justice Chief Justice Vikram Nath and Justice Biren Vaishnav expressed concerns about the provisions which treat every conversion by marriage as unlawful and places the burden of proof on the parties entering an inter-faith marriage to prove that the marriage was not solemnized on account of any fraud, allurement, or coercion.
The high court held that the rigors of Sections 3, 4, 4A to 4C, 5, 6 and 6A of the Gujarat Freedom of Religion (Amendment) Act, 2021 shall not operate pending final judgment.
Supreme Court: Directs states to file status reports on vacancies & pendency in State Information Commissions.
In the case of Anjali Bhardwaj and others Vs. Union of India and others, the Supreme Court directed state governments to file status reports indicating the vacancy positions and pendency of appeals in the State Information Commissions.
The Supreme court was hearing an application filed by RTI (Right to Information) activist Anjali Bharadwaj seeking compliance on the part of states with respect to the Supreme Court’s order issued in February 2019. The Supreme Court had issued a slew of directives regarding the filling up of vacancies in Central and State Information Commissions (SICs) under the RTI Act.
The bench of Justice S Abdul Nazeer and Krishna Murari considered the positions of various states on an individual basis.
In the case of Maharashtra, the Advocate appearing for the petitioner informed that although the state was directed to increase the posts in SIC to 11, by the Supreme Court in the 2019 judgment, SIC only has 8 posts and out of which 4 are remaining vacant. Further, the pendency has risen to around 75,000 cases from around 40,000 in 2019. The supreme court bench pulled up the State of Maharashtra for not filling vacancies and directed the state counsel to ensure the vacancies are filled within 3 weeks.
In the case of Karnataka, 8 out of 11 posts in SIC are filled and advertisements for the rest 3 vacancies have been published.
Although the supreme court directed the creation of 3 additional posts, Odisha has created only 2 additional posts of Information Commissioners.
In the case of Telangana, the post of Central Information Commissions (CIC) has been lying vacant for one year. Similarly, in Nagaland, the post of Chief Information Commissioner has been vacant since January 2021.
In the case of Kerala, all posts in the SIC are filled. However, the state has not increased the posts to 11 as directed by the supreme court.
The state of West Bengal failed to file an affidavit. The supreme court warned the state of imposing costs or summoning the Chief Secretary on its failure to file the report.
Advocate Prashant Bhushan submitted that the Information Commission in Jharkhand has become completely dysfunctional. The supreme court sought the state’s response in this matter and warned the state counsel of summoning the Chief Secretary if it fails to fill the vacancies by the next hearing date.
Madhya Pradesh HC: Directed State to provide assistance to transgender in getting their Identity cards, ration cards and Aadhaar card.
In the case Noori Vs. State of Madhya Pradesh and others, the Madhya Pradesh high court directed the M.P. State Legal Service Authority to provide assistance to transgender in getting their Identity cards/Transgender cards, Ration cards and Aadhaar cards prepared.
The high court was hearing public interest litigation filed a Noori, a transgender, who is working as a social worker and paralegal volunteer for the welfare of the transgender community.
The plea contended that most transgenders do not have a transgender card, especially those who are newly added to the list. Due to the non-availability of the transgender cards, they are not able to get their Aadhar card and Ration card prepared. The plea highlighted that as against the promise of providing 5 kg food grains every month, currently, only 4 kg food grains is being given to the transgender, out of which also 2 kg Bajra is provided, which is insufficient.
The bench of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla directed the M.P. State legal service authority to get a survey conducted through Paralegal volunteers and provide assistance to all such transgenders, who are facing difficulty in getting their identity cards.
The high court also directed the Secretary of the District Legal Service Authority, in each district, to monitor this exercise, and gave the following directions:
Karnataka HC: Police interrogation of children over anti-CAA school drama prima facie violated JJ Act, child rights.
In the case Nayana Jyothi Jhawar Vs. State of Karnataka,  the Karnataka high court made a prima facie observation that the presence of policemen in their uniforms, carrying weapons, while interrogating children with regard to the sedition case was a serious violation of the provisions under the Juvenile Justice (Care and Protection of Children) Act, 2015.
The court was hearing a petition filed by filed lawyer Nayana Jyothi Jhawar and South India Cell for Human Rights Education and Monitoring. The petition states that about 85 children, some as young as 9 years of age of Shaheen Education Society, Bidar, were subjected to a police interrogation in connection to a play concerning the Citizenship Amendment Act (CAA).
Students of the Shaheen Education Society belonging to classes 4, 5 and 6 had staged a play on the Citizenship Amendment Act (CAA) and National Register of Citizens (NRC) in January 2020. An FIR was registered against the school authorities for performing “anti-national activities” and “spreading negative opinion” about Parliamentary laws, based on a complaint by activist Nilesh Rakshala.
Pursuant to the FIR, the headmistress of the school, as well as a parent of a child, was arrested. The Police went on to interrogate children, within the school premises. The plea discloses that the police authorities visited the school in police uniform and selected students, based on their discretion. Those students were then taken for interrogation to a separate room, within the school premises. The petition highlighted that the entire episode was reported by the media and can be corroborated with the footage, recorded in the CCTV cameras, installed at the school.
The bench of Chief Justice Abhay Oka and Justice NS Sanjay Gowda perused the photographs placed on record. The bench noted that in the photographs it appears that three school children (two boys and one girl) were interrogated by five police persons, out of which four are in full uniform, and at least two of them were carrying weapons. The court stated that this made the environment very hostile and affected the children’s mental psychology, as the petition had averred.
Considering the submissions, the court opined that prima facie, this is a serious case of violation of rights of the children under the provision of Sub Rule 5 of Rule 86 of the Juvenile Justice (Care and Protection of Children) Model Rules, 2016.
The high court directed the State Government to present an affidavit by a senior police officer, within two weeks, stating if any action has been initiated against the police officials who interrogated school children while wearing uniforms and carrying weapons. The court also directed the state government should consider issuing a direction to the police which will ensure that such violation of rights of the children does not take place in the future.
The matter has been listed for further hearing on 03 September 2021.
Featured Image: Important Court Judgements