SC’s Hadiya Order is Welcome, But Should it be Celebrated?

At long last, the Supreme Court has restored Hadiya’s marriage. The delay in doing so, however, is inexcusable.

The Supreme Court on Thursday, 7 March, set aside the Kerala High Court’s annulment of Hadiya’s marriage to Shafin Jahan in May 2017, bringing a much-needed end to a shameful chapter in India’s judicial history. In doing so, the apex court has upheld Hadiya’s autonomy and made a powerful statement on the right to life and personal liberty.

In the end, it was an easy decision to make. Faced with a straightforward legal issue – did the Kerala High Court have the power to annul a marriage of two consenting adults when neither had requested it? – CJI Dipak Misra said in court:

Let us simplify things… she has appeared before the High Court and stated that she is not in confinement. The High Court could not have interfered in the marriage.

The order issued by the bench comprising of the CJI, along with Justices DY Chandrachud and AM Khanwilkar, was similarly succinct, noting that it was restoring Hadiya’s marriage because “she appeared before this court on 27 November 2017, and admitted her marriage with appellant No 1 [Shafin Jahan].”

All that was needed to resolve this whole case, essentially, was for the court to listen to the words of an adult woman and respect her choices. And despite it having done so, the fact that it’s taken this long for the SC to do something so blindingly obvious, means the decision is nothing to celebrate.

What’s Wrong With the SC’s Order?

There is nothing wrong with the content of the Supreme Court’s order — as pointed out above, it cuts right to the heart of the real issues at play. The full judgment is not yet out, of course, so there may be further comment required on that as well. For now, however, the problem is with the timing.

The case has been with the apex court since July 2017, when Shafin Jahan filed an appeal against the decision of the Kerala High Court. Former CJI JS Khehar conducted the first hearing into the case in August 2017. The court heard Hadiya in person in November 2017. It has finally passed its order in March 2018, which is based entirely on what Hadiya told them 3 and a half months ago.

Why, then, was this order not passed in November itself? Why did it take the court seven hearings before it even agreed to hear her testimony?

There are no satisfactory answers to these questions, which is what makes the timing of this order a problem. If there was a difficult legal issue, and the court had to listen to complicated arguments from lawyers, the delay would have been understandable. If the key issue could only be answered after a long investigation, again, the delay could have been understandable.

In this case, however, none of those justifications is applicable, not even that of an investigation, despite the best efforts of the NIA and Hadiya’s father to insist that this is a case of “love jihad”. The bench has allowed the NIA to continue its investigation, but as the CJI took pains to point out during the last few hearings, this could never have had any bearing on the status of Hadiya’s marriage.

For this case to have dragged on for so long, therefore, is a travesty of justice.

How the Kerala HC Judgment Was Blatantly Wrong

As mentioned earlier, the simple legal issue before the court was whether or not the Kerala High Court was right to annul the marriage. On both procedural and substantive grounds, the answer to that question was a resounding no.

To begin with, the case in the High Court wasn’t even supposed to be about annulment — it was a habeas corpus case filed by Hadiya’s father in 2016, who wasn’t pleased that she had decided to convert to Islam and leave home. Hadiya wasn’t even married at the time the case started and the court therefore overstepped its bounds when ordering the annulment.

Even if Hadiya’s father had asked for the annulment, the High Court still couldn’t have granted this request, since the annulment of a marriage can only be asked for by the husband or wife. Third parties, including the families, do not have any right to ask for an annulment. If one of the parties is a minor, or suffers from some mental incapacity, this could possibly allow the court to step in, but neither of those things applied here.

These grounds were sufficient to dispose of this case in themselves. But this wasn’t all. The judgment was riddled with shocking patriarchal assumptions, including that Hadiya’s “marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.”

The Kerala High Court declared that not only was the marriage a “sham”, but also that her conversion to Islam was involuntary, ignoring numerous affidavits signed by Hadiya to the contrary. It also declared that it had to take decisions on her behalf because she was vulnerable, even though she was an adult and there was no expert report to say that she was mentally impaired in any way.

And on top of this all, after annulling the marriage, Hadiya was sent to the custody of her parents, and not allowed to go out or meet anyone without their permission.

“Only a Khap Panchayat Could Have Supported the High Court’s Decision”

The Kerala HC judgment was clearly wrong in law, violating Hadiya’s right to life and liberty under Article 21 of the Constitution, as well as her right to freedom of expression under Article 19(1)(a) and freedom of movement under Article 19(1)(d). According to Apar Gupta, an advocate practicing in the Supreme Court of India:

There is little support within legislation, legal precedent or reasoning to support the High Court’s finding to annul Hadiya’s marriage. Even a conservative, textualist judge could have easily struck down the judgment.

Given how baseless the judgment was, the Supreme Court’s failure to do anything about it for so long, not even putting a stay on it, has had extremely serious consequences:

1. ‘Love jihad’ has gone from being a derided conspiracy theory to something so apparently serious that a court acknowledged its existence, and the premier intelligence agency in the country is investigating it.
2. Government authorities and parents have been assured that they can file cases in the courts whenever they are unhappy with the decisions of adults, and that despite lacking any legal basis for doing so, the courts will not put a stop to this for months on end. The autonomy of women in particular is particularly jeopardised by legitimising such an attitude.
3. The Supreme Court has once again avoided making a decision for months on end and then after doing the basic minimum it needs to in such a case, is being lauded as standing up for women’s rights.

Gupta points out that “only a khap panchayat not a court of law could have supported the High Court’s decision in Hadiya’s case. On law or on facts.”

Senior journalist Namita Bhandare agrees with Gupta, saying:

I don’t see any cause for cheer here. The Supreme Court is merely reflecting a larger social problem. This is a group of men sitting in a choupal and deciding whether this girl should be allowed to study, whether she should be allowed to live with her husband. It’s absurd.

The NIA investigation is also still ongoing, which opens up the possibility of continued harassment of Hadiya and Shafin. Hadiya has already complained about the prejudicial way in which the investigation has taken place, and given the concerns that all of this has been at the behest of external groups trying to capitalise on it, this is not likely to be something that goes away.

Possibility to Lay Down a Strong Precedent

Despite the disappointing way in which the Supreme Court has dealt with the case, the judges still haven’t written their final judgment. If done right, they therefore have the opportunity to address these concerns and ensure it becomes a precedent for the right, rather than the wrong reasons. Over the last three hearings, the judges’s oral comments have shown they have recognised the dangers of the way this case had proceeded, so it isn’t unreasonable to expect this.

Some of things which will need to be included in the final judgment for this to happen are:

1. First, it needs to clearly reiterate and recognise the importance of an adult individual’s autonomy to make their own decisions (as long as they aren’t illegal) without any regard for the opinions of their parents, society, or even the NIA. Special mention will need to be made of the application of this to women, who find their decision-making constrained even after attaining majority.
2. Secondly, it has to emphatically state that that unfounded nationalist considerations cannot be used to get around the law – in this case, the whole love jihad angle was being used to paper over the fact that procedurally, the annulment could not have taken place. This should send a strong message about the primacy of the rule of law, and stop courts, the police and politicians from using these kinds of cases to further their own political objectives.
3. Thirdly, it needs to expressly hold that the High Court got each of the aspects of its decision wrong: annulling the marriage when neither party had complained, disregarding Hadiya’s testimony, applying the parens patriae doctrine to an adult, and sending her to her parents’ custody.

We can only hope that these things happen and that next time, it doesn’t take so long for the guardians of our civil liberties to realise the obvious and safeguard our freedoms. Till such time, however, while we may celebrate Hadiya’s freedom, we must not forget what an arduous road it’s been.