A Supreme Court bench led by Chief Justice Dipak Misra revisited the immensely controversial Hadiya case on Tuesday, and this sparked several new debates.
The bench questioned its previous order that had directed a National Investigative Agency (NIA) probe into the alleged forced conversion and marriage of Hadiya (previously Akhila), a Hindu woman. Additionally, and more importantly, the apex court asked some tough questions — whether the Kerala High Court had any jurisdiction under Article 226 of the Constitution to nullify a marriage.
Chief Justice Misra said, "Can the high court, under Article 226, nullify a marriage? We want logical, legal arguments on this. No shouting. Instead of questioning legal foundation, you are straying here and there."
The apex court's reversal on the issue of Hadiya's conversion and marriage to Shafin Jahan comes after a spate of tendentious events in the case had sparked a controversy. Hadiya was born as Akhila Ashokan, and studied in Salem. Her father filed a habeas corpus petition in the Kerala High Court, stating that she was missing, which the high court dismissed when Hadiya was located.
Her father then filed another habeas corpus petition, alleging that she was forced to convert to Islam. As a response to this, in May 2017, the Kerala High Court, in an extremely unusual order, annulled Hadiya's marriage, saying she was forcibly indoctrinated, and that this was nothing but "love jihad". The division bench comprising justices Surendra Mohan and Abraham Mathew stated that the couple's wedding was of "no consequence" in law, as it was performed without the approval of Hadiya's parents. "Marriage being the most important decision in her (Akhila's) life can only be taken with the active involvement of her parents," it said.
In August 2017, the Supreme Court ordered an NIA probe into her conversion, making the case curiouser and curiouser.
In this order, the Supreme Court bench, also comprising justices AM Khanwilkar and DY Chandrachud, along with the chief justice, took to reviewing past orders passed in the case. Senior advocate Dushyant Dave, who appeared for Shafin Jahan, stated that the court had exceeded its jurisdiction by ordering the NIA probe. "State was not in appeal, father was not in appeal and it was we who came to the court," he said.
He also pointed out that the Supreme Court order had devastated the very foundation of this multi-religious country. Tushar Mehta, additional solicitor general, remarked that it is the court's responsibility to ascertain whether Hadiya's conversion to Islam was for marriage, or if there was an emerging pattern. The bench will hear the matter again on 9 October. In the meanwhile, Hadiya continues to live with her father (as her court-appointed custodian) in Thiruvananthapuram in a torturous environment.
The Supreme Court's observations in the case are redeeming, especially when it comes to the matter of an NIA probe — an unnecessary tool to exploit an inter-religious couple's vulnerability. Additionally, the Supreme Court also remarked that Hadiya be removed from her father's custody, but it would appoint loco parentis (the legal responsibility of a person or organisation to take on duties of parents) for her. Chief Justice Dipak Misra remarked, "We will either appoint loco parentis or we will send her somewhere safe. The father cannot insist on her custody."
This remains a problematic angle in an otherwise progressive order, and certain questions need to be asked — does a 24-year-old woman need to be under a custodian at all? Does the Supreme Court not comprehend the concept of women's agency? And, where are the rights-based observations from the highest Court of the country?
Since the beginning of this case, Hadiya, a 24-year-old adult woman, has been likened to a child. Her father's filing of habeas corpus petitions, the high court's abeyance of her right to choose what religion she professes and how she chooses her partner, the judiciary's blatant denial of her agency and the provision of a "custodian" are all ways to undermine her rights as a woman, and more significantly, as a citizen of a democratic country.
In my opinion, the judiciary, in assuming a parens patriae jurisdiction, in this case, has created a terrible precedent. By declaring Hadiya's marriage void and by appointing her father as her custodian, the judiciary has exercised such a right, and in turn, deemed Hadiya as a child without rights. There has been judicial infantilisation of Hadiya, in a way that her agency and her rights have completely been negated by an organ of the government that is responsible for the protection of fundamental rights of all citizens. As the judiciary assumed the high position of parens patriae, it also dismissed her denial of forced conversion and marriage by asserting that she is of mediocre intelligence, and does not have the capacities to think independently. Such infantilisation contributes not only to the silencing of her rights, but also proves that patriarchy pervades the judiciary heavily.
Hadiya is further infantilised in this present order by the Supreme Court bench led by Chief Justice Dipak Misra, when he stated that another custodian, in place of Hadiya's father, shall be appointed for Hadiya's safe-keeping. "Either we will appoint loco parentis or we will send her somewhere safe. Father can't insist on her custody," it said. This is a gross violation of Hadiya's rights by the apex court, and a reflection of the state's infantilisation of its citizenry.
Another grave problem that is symptomatic in the judicial order is that the judiciary has begun to adjudicate, depending on issues, instead of citizen's rights. The present bench lashes out at the NIA probe that was ordered, instead of the rights that were violated in the present matter. Such issue-based adjudication from the Supreme Court is subjective and arbitrary and has no real basis in law. Hadiya's right to life under Article 21, her freedom of expression (Article 19(1)(a)) and her freedom of movement (Article 19(1)(d)) have not been discussed in the previous judgments at all. Instead, the courts speak of morality, marriage without the approval of parents, and love-jihad, responding to the demands of Hadiya's father, instead of the aggrieved petitioner who moved the court to seek the restitution of her marriage.
Hadiya's case will be discussed again on 9 October; however, at this point, it is apparent, that according to the Supreme Court, her rights will not occupy the primary issues of the case.
Published Date: Oct 04, 2017 06:27 pm | Updated Date: Oct 04, 2017 06:27 pm