Exorcizing Hadiya

In the recent record of India’s higher judiciary, there is a lesson to be learnt about the difference between affirming first principles and applying them in the real world. The judgment of the Supreme Court in Puttaswamy versus Union of India, especially the framing of it by the judge, D.Y. Chandrachud, suggested that the Supreme Court, via a nine judge bench, had committed itself to a conception of privacy as an individual right that protected a person’s ability to make autonomous decisions.

But even at the time of that judgment there was some disquiet about the fact that two of those nine judges, Chandrachud and the chief justice at the time, J.S. Khehar, had previously instructed the National Intelligence Agency to investigate the so-called ‘Hadiya case’: a Hindu woman’s conversion to Islam and subsequent marriage to a Muslim in Kerala. The inconsistency was stark: judges committed to privacy and autonomy had seemingly gone along with the Kerala High Court’s annulment of the marriage of a consenting adult and become party to her virtual incarceration in her parents’ house. It was as if an adult Hindu woman who converted to Islam could be declared a ward of the State against her expressly stated wishes, have her rights as a citizen suspended and her marriage voided.

Instead of pronouncing on the precedent set by the Kerala High Court in infantilizing a citizen, the Supreme Court authorized the NIA to investigate the antecedents of Hadiya’s husband under the supervision of a retired Supreme Court judge. When the judge refused this responsibility, the court allowed the investigation to proceed unsupervised. Meanwhile Hadiya spent months in her parents’ custody in a kind of house arrest, repeatedly affirming that she had chosen to become Muslim and chosen to get married of her own free will.

But all of this had happened before the Puttaswamy judgment and the hope was that this was an aberration, that once the apex court heard Hadiya out it would recognize that she had acted of her own free will and restore to her that autonomy that Chandrachud had eloquently set out as the constitutional birthright of every Indian. That didn’t happen. When the Supreme Court met this week it deferred a decision on the annulment of her marriage, removed her from her parents’ supervision but placed her instead under the tutelage of a college hostel in Salem where she is to do an internship in homoeopathy and that too, according to the dean, under her erstwhile Hindu name, Akhila Ashokan. Hadiya’s plea to be reunited with her husband was ignored and her rights as a citizen remained suspended as the NIA continued its enigmatic investigations. Meanwhile Hadiya as an adult married woman was reduced to asking the principal of her college for permission to meet her husband.

The Supreme Court’s judges might retort that legally he isn’t her husband after the annulment pronounced by the Kerala High Court and that is, in fact, the nub of the matter. As a constitutional court the most pressing task in front of the Supreme Court was not to investigate the allegedly Islamist antecedents of her husband but to pronounce on the strange and dangerous precedent set by the Kerala High Court in the Hadiya case.

Under what law can a marriage between two consenting adults be annulled? If, for the sake of argument, Hadiya’s husband had criminal connections with global jihad, he should have been charged and tried and if found guilty, imprisoned. Even then, this would have had no effect on his marriage to Hadiya: even criminals are entitled to be married. Why should the restoration of Hadiya’s rights as an Indian citizen wait upon an NIA investigation? How is the investigation germane to Hadiya’s autonomy as a citizen, her right to be married to whoever she chooses? As Chandrachud observed in his Puttaswamy judgment, “The purpose of elevating certain rights to the stature of guaranteed fundamental rights is to insulate their exercise from the disdain of majorities, whether legislative or popular. The guarantee of constitutional rights does not depend upon their exercise being favourably regarded by majoritarian opinion.” Why then, should Hadiya’s right to religion, her freedom to choose a partner, be held to ransom by a majoritarian canard, the bogey of ‘love jihad‘?

Let us be clear: the Kerala High Court accepted the premises of the ‘love jihad‘ narrative when it annulled Hadiya’s marriage despite being told by the police that the nikah was done in the prescribed way. It doubled down on this narrative when it ordered an investigation into the Islamist antecedents of her husband. For the Supreme Court to ignore the high court’s surrender to the ‘disdain of majorities’ (in Chandrachud’s fine phrase) and to concentrate instead on ordering the life of a free citizen allegedly for her own good, is to abdicate its principal responsibility as the guardian of the republic’s Constitution and its citizens’ rights.

Instead of protecting Hadiya’s fundamental freedoms, the higher judiciary serially constrained them by committing Hadiya to the custody of her parents one moment and hostel superintendents the next. The NIA is now arguing that the definition of incapacity in the matter of choice and consent be expanded to include ‘indoctrination’. Given the steadfastness of Hadiya’s positions throughout her ordeal and the inability of the NIA to work up a shred of evidence for its lurid jihadist conspiracy, ‘indoctrination’ seems a desperate modern spin on the medieval notion of possession. The Supreme Court should remind the NIA that it is an investigative arm of a modern nation, not the Holy Inquisition, and that it does not lie within the remit of a republic to exorcize its citizens.

The higher courts are, or should be, the guardians of our individual rights, not institutional patriarchs ordering our lives for us. It has been six months since the Kerala High Court annulled Hadiya’s marriage and more than a year since Hadiya lost control of her life. The nine judge bench that considered Puttaswamy versus Union of India unanimously held in its order that privacy was not just a fundamental right but that it was also inseparably connected to all the individual freedoms that the Constitution guaranteed.

Forced into the custody of her parents or ordered into institutions empowered by the courts to act in loco parentis, Hadiya’s privacy hasn’t just been infringed: it has been shredded. Denied the privacy of conjugal living, watched over by unwanted police escorts and subjected to continuous surveillance, Hadiya is no longer a citizen; she’s a ward of the State, confined without charge or due process. If the Supreme Court doesn’t act swiftly to undo the damage done by this lawless annulment, Puttaswamy versus Union of India will be remembered not as a landmark in Indian jurisprudence but as an aberrant footnote in the history of its decline.

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Article source: Kerala High Court

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