The Supreme Court Has Failed Hadiya – And Maybe The Rest of Us Too

Is Hadiya’s ordeal over now that she’s back in college? Here’s why there’s much more the SC should have done.

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?

These are the questions we should all be asking today as we follow the travails of 25 year-old Hadiya, a homeopathic medicine student who converted to Islam of her own free will, and then later married another Muslim, Shafin Jahan. Now in an ideal world, we should not have been asking any questions at all about any of this, but this is India 2017, which means that all the wrong questions are being asked and all the wrong answers are being given.

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.

Hadiya Finally Gets Her Day in Court (or 1/48th of One)

It’s been 48 hours since Hadiya walked into the Supreme Court of India and demanded her freedom. In the time since then, she:

1. Was forced to stand in court for nearly 2 hours while in her presence lawyers argued about whether she was capable enough to make her own decisions, and the judges dithered about whether or not they even needed to hear from her;
2. Was questioned by the judges about her life and lectured indulgently on how she needed to be able to stand on her own two feet;
3. Was freed from the custody of her parents, and her place in college to complete her studies restored;
4. Was not allowed to visit her friend in Malappuram (who knows why?);
5. Was kept at Kerala House while in Delhi and not allowed to meet Shafin Jahan, the man she had married;
6. Was escorted by police to Sivaraj Homeopathic Medical College in Salem where she and her lawyers thought she would finally be free;
7. Was informed by the Principal of the college that she would only be able to meet her parents and nobody else, and would not be referred to by the name she changed to;
8. Gave a press conference in which she noted all too accurately that despite being supposedly freed by the Supreme Court, it remained to be seen if she would actually get any freedom;
9. Was eventually told by the Principal that actually she could meet whoever she wants (provided she gets the permissions required for any other student) and that she can get her name changed to the name she wants if she submits the relevant paperwork.

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?

What Exactly Did the Supreme Court 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.

But this decision to not address her relationship with Shafin is hugely problematic, because in a conservative college like the one she’s going to, where she needs to get permission before meeting anyone, it will be very easy for the college to deny her the right to meet someone not from her family, especially Shafin – given the fact that the Kerala High Court judgment annulling their marriage has not yet been overturned.

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.

What the Supreme Court Didn’t Do

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.

Why the Supreme Court Should Have Done More

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.

Because Hadiya has not broken the law, after all. Not a law on the statute books at any rate. It’s not illegal to convert from one religion to another. It’s not illegal to get married to whoever you want, even if they are a criminal or a terrorist (which Shafin Jahan is not, in any case). It’s not illegal to change your name, or want to live away from your parents.

So why is her life being meddled with? It is an utter travesty, and one built on so many terrible foundations.

Obvious Flaws in Kerala High Court Judgment

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:

1. Annulment and granting of custody to private citizens can’t be ordered under a habeas corpus petition, as the case was; and
2. Annulment of marriage can only be asked for by the parties to a marriage where both of them were consenting adults at the time of the marriage.

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:

Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.

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 Irrelevance of the NIA Investigation

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.

• First, because they weren’t even involved in the case when the High Court made its decision – so their evidence cannot be used to justify the High Court’s judgment. There was therefore no need to wait for the results of the NIA investigation before evaluating the High Court judgment, as the Court seems to believe.
• Secondly, no matter what the NIA’s reports say, it still has to be proved in court that Hadiya wasn’t capable of making her own decisions – which has not yet been done – as mentioned above, the High Court didn’t have any evidence for holding this. So till such time as the Supreme Court conclusively holds that her choices weren’t made freely, which may be on the basis of the NIA investigation or whatever other science fiction the NIA lawyer feels like submitting, there’s no bar to setting aside the High Court judgment, whether temporarily or conclusively.
• Thirdly, the NIA have to not just show that Hadiya was influenced by some people to convert and marry Shafin, but that this was done by fraud, coercion, false inducement, or something else that would counter her numerous affidavits and statements, including the one made in the Supreme Court, that she is doing all of this of her own free will. That’s basically going to be impossible to prove – which may explain why they’re turning to daft things like hypnosis.

Gaps in the Supreme Court Order of 27 November

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!

It Could Be You

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.

But this can still be set right. The Supreme Court is still seized of the matter. They still haven’t passed their final judgment. They still haven’t set in stone this bizarre precedent, of probes into marriages by intelligence agencies, and of disregarding the lawful wishes of adult citizens.

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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