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Why does anyone, including the Supreme Court of India, have the right to question the actions of a grown adult woman who hasn’t broken the law?
Since when did unproved allegations of “indoctrination” become grounds to insist that an adult woman with no mental impairment has no capacity to make decisions for herself?
And do we have an answer now, any answer at all, after all these months down the line, as to what provision of law allowed the Kerala High Court to annul a marriage between two consenting adults, which had not been objected to by either party?
And as long as this keeps happening, the liberty of an Indian citizen is being trampled upon with utter disregard for her constitutional rights, which should worry every single one of us.
It’s been 48 hours since Hadiya walked into the Supreme Court of India and demanded her freedom. In the time since then, she:
For someone who’s been wrongfully confined since May by a patently illegal High Court judgment and her despotic parents, that’s actually a pretty good couple of days. But the fact that this actually seems an improvement on what’s happened to her thus far, is a damning indictment of our justice system – and of our country as a whole.
But the Supreme Court was doing its job, you might say. It’s following due process, and has now given her the freedom she asked for. What else should have happened here? Didn’t the judges do everything needed?
Well, actually, they haven’t. Let’s begin with the order passed by them two days ago. What does this order, which the judges claim is in accordance with Hadiya’s wishes, actually do?
To begin with, it conveniently glosses over the fact that when asked what she wanted, Hadiya not only said that she wanted to go and finish her studies, but also that she wanted to live with her husband and do so. However, she agreed to go back to the hostel in college, if that was what it took to be able to complete her degree.
Next, it directs “that she be taken to Salem so as to enable her to pursue her internship/housemanship.” This again is massively problematic, because it implies that even though the judges in court said that she “is an individual with her own mind”, and who is an adult, and who is supposed to be free now, she can’t be allowed to do as she pleases, and reach Salem for her studies, by her own devices.
This is therefore effectively the court ensuring that she go to college and nowhere else – which is none of their business. If there was evidence that she would go and commit some crime, then sure, they could restrict her movements if the right procedures were followed. But in the absence of any such evidence, there is no reason or basis for them to be directing that she be “taken” anywhere.
The rest of the order till the last two paragraphs goes into the arrangements for her travel and stay, and her request to be accompanied by policewomen in plainclothes. This seems fine, given that all of this is indicated to be at her request – though of course, as pointed out already, the order glosses over her relationship with Shafin, and her desire to be able to be with him.
Which leaves us then with the last two paragraphs, and everything they entail. First, the judges note that the National Investigation Agency (NIA) probe into the case will continue “in accordance with law” which is a complete joke, since the investigation has proceeded even though it is not being headed by a retired Chief Justice as the Supreme Court itself said it needed to be back in July.
And lastly, it says that the case will be taken up again in the 3rd week of January 2018; which means that this case has not in fact been laid to rest, and that the Court is yet to decide on the validity of the Kerala High Court’s execrable judgment, and that it will only do so two months from now – after hearing some more tinfoil conspiracy claptrap about ‘love jihad’ from the NIA again.
There are obviously some counter-arguments to the criticisms made above. You might say that the NIA’s submissions about love jihad (which go so far as to include hypnosis, by the way) are more than wild claims, that there is reason to suspect that there is an organised campaign to lure Hindu women away from their faith and convert them to Islam. You might say that her parents have every right to be worried about her, and to want to ensure her welfare. You might say that the Supreme Court needs to take its time to get to the bottom of all of this. All of which is fine.
The Supreme Court judges could well take that view. But even if the judges were to do so, there is still so much more that should have been done to protect an adult citizen’s constitutionally-guaranteed rights as an individual, which brings us back to those questions from the start; questions which are based on a very simple foundation – the autonomy of a citizen of this country, the autonomy that allows them to do whatever they want, provided they don’t break the law.
So why is her life being meddled with? It is an utter travesty, and one built on so many terrible foundations.
The Kerala High Court decision which started all of this is riddled with shocking patriarchal assumptions that have no basis in law, and ends up doing something it had no authority to do – annul Hadiya’s marriage and place her in the custody of her parents. This was not possible for two glaring procedural reasons:
Even if these absolutely vital grounds could be glossed over (they couldn’t, by the way), there was no substantial evidence that would justify doing this. Essentially, the case boiled down to one thing: was Hadiya incapable of converting to Islam and agreeing to later marry Shafin Jahan?
The reasoning relied on by the High Court to answer this question was horribly incorrect. They ignored numerous affidavits signed by Hadiya asserting this was her decision. They had no medical/psychiatric/psychological expert report to say that Hadiya was mentally impaired in any way – in fact, they admitted that there was nothing wrong with her, and they refused to let her testify and make her case in court.
If you want an example of how baseless the High Court order was, try this:
Despite all of this, the Supreme Court didn’t see fit to even stay this terrible decision when it was brought to them. Then-CJI JS Khehar and Justice Chandrachud should have struck the whole thing down at the very start of this fiasco, because it was blatantly, patently, illegal. It’s been over four months since then, and even with a new bench headed by the current CJI, this still hasn’t been done.
The basis for prolonging this case and not conclusively ruling on the status of Hadiya and Shafin’s marriage, has been the investigation being carried out by the NIA. However, the allegations by the NIA of some grand scheme to propagate love jihad are also irrelevant to the question of whether the Kerala High Court’s decision should have been stayed or overturned, for very simple reasons.
It’s difficult to understand why none of these things were addressed by the Supreme Court on Monday, when it had the opportunity to do so. It was first of all tragic that Hadiya had to wait so long to be heard, that for 4 months the Court had declined to let her come before them, that they then deliberated for almost 2 hours about when and how it was necessary to hear her. This case is about her, for heaven’s sake. The first order of business should have been to let her speak.
And then you have the order. Which is worded in such a way that her return to college is at the sufferance of the Court, not of her own free will. If that isn’t true, then why not clearly say that she is free to do what she wants, not “direct” that she be “taken” to places. Why not say what happens to her after her internship ends, 11 months hence – will she then be free to go where she wants, or will the Court still be directing what is to be done with her? Why not allow her to meet her friend in Malappuram? Why not let her meet Shafin Jahan and stay with him in Delhi till she went to Salem – they don’t even need to be legally married for her to do that!
Hadiya is the one facing all of these horrors, who has been subjected, in her words, to mental torture during the last few months in her parents’ custody – not because of some terrorists, or jihadis or fundamentalists, but because of decisions made by the official machinery of the State.
And that’s why we should all be afraid about what’s happening here. Your liberty can be taken away by an overzealous arm of the government upon an application by someone who has no right to meddle in your life. Your rights can be ignored, including by those whose very purpose is to protect those rights. Your life can be dictated and micro-managed by those who think they know better, even though there is no basis in law for any of this to happen.
So make some noise. Make it clear that you know that what’s happening is wrong and must stop. Make it clear that you know your rights and that you expect them to be upheld. Make it clear that you stand with Hadiya in solidarity, that you support her fight for freedom – not just some drip-fed, indulgently granted freedom but the full-bodied freedom that our Constitution guarantees us.
And maybe, just maybe, this dark moment in our country’s history, will not go down in infamy.
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Published: 30 Nov 2017,04:30 PM IST