Hadiya Case: Judiciary Won't Protect Fundamental Rights?

By Ashwin Tombat
01 January 2018 11:45 IST

Articles 19 to 22 of the Constitution of India define the Right to Freedom. This includes freedom of speech and expression, assembly, association or union, movement, residence, and right to practice any profession or occupation, right to life and liberty, etc. Articles 25 to 28 enumerate the Right to Freedom of Religion. This includes freedom of conscience and free profession, practice and even propagation of religion. But it seems that these rights are not for 25-year-old Hadiya.

On Monday, the Supreme Court, which is bound to uphold the Constitution of India, failed to protect Hadiya's fundamental rights. She converted to Islam in 2015 against the wishes of her parents. A year after she converted, she married a Muslim man. This, her father claimed, was because she was "highly indoctrinated, brainwashed" and had been "mentally kidnapped".

The Court ordered that she will go to the Shivraj Homoeopathic Medical College in Tamil Nadu. She will no longer be under the custody of her father. Instead, the Principal of the college, G Kannan, will now be her guardian.  Mr Kannan has already declared that he will "not allow" Hadiya to meet anyone other than her parents.

Her marriage of choice was annulled by the Kerala High Court in May. Neither she nor her husband had sought dissolution of their marriage. But the Kerala High Court treated her as if she was her father’s property; as someone who does not have the right to choose her religion or whom to marry.

The Supreme Court, instead of instantly overturning the High Court’s bizarre annulment of her marriage, ordered an investigation into her conversion and marriage by the National Investigation Agency (NIA), the country's principal counter-terrorism agency!

The court had ordered that Hadiya be produced before it to ascertain her own will. But when she appeared, it could not decide for two hours whether to actually hear her or not. Instead, the honourable Judges debated other things, including whether she was suffering from 'Stockholm Syndrome' (hostages developing feelings of trust or affection for their captors, seen in some cases of kidnapping). This, when she had been in her father's custody for months!

It was only when former Additional Solicitor General of India Indira Jaising said that if it was a man in Hadiya’s place, the court would have responded differently, that the three-judge Bench reacted. It criticised Ms Jaising for bringing in gender and asserted that it treats men and women alike. But it agreed to hear Hadiya.

Hear her they did. But the Court seemed not to be listening.

She repeatedly said she wanted to see her husband Shafin Jahan, who she married last December. She said her husband could take care of her. But Justice D Y Chandrachud told her: "A husband cannot be his wife’s guardian. A wife is not chattel. She is an individual with her own mind and talents… You must have the ability to stand up on your own feet and live a life of dignity."

Fine words. But that was precisely what this articulate young woman was herself saying. Hadiya showed that she has her own mind and the ability to stand up for herself.

Rather, it is the judiciary that has treated Hadiya as if she has no mind of her own. A High Court dissolved her marriage and placed her in her father’s custody. The Supreme Court has refused to allow her to return to her husband for the present, and made a college principal her guardian. He decides whom she can and cannot meet.

The Supreme Court has treated a 25-year-old citizen of India as someone without the right to choose how to live, whom to marry, or to be with her husband. The choices she makes as an adult are subject to court decisions.

Unless she is mentally unsound — and there is not the teeniest-weeniest evidence of this, notwithstanding the NIA's empty-headed suggestion that she was "hypnotised" — she has an inalienable right to every decision she has made, under a Constitution that the judiciary is sworn to protect.

To say that she has converted because she was 'indoctrinated'  or 'brainwashed' is absurd. To say it is 'Love Jihad', when she married a year after conversion by putting an advertisement in a newspaper, is nothing short of ludicrous.

What becomes of Hadiya's fundamental rights? What becomes of our fundamental rights...?

First published on Sunday 3 December 2017

Disclaimer: Views expressed above are the author's own.

Blogger's Profile

Ashwin Tombat

Ashwin Tombat has been the Editor of Gomantak Times and Herald. Worked as an Associate Editor of national magazine Gentleman in Mumbai, before shifting to Goa. Loves sailing, also participates in Marathons. Has worked as an activist in students's union and trade unions in Maharashtra. Also an artist of Street Theatre during student days.

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