Courts raising ‘love jihad’ bogey is a breach of women’s fundamental rights to religion and privacy

After Kerala High Court, it’s the turn of Rajasthan HC to entertain a plea that’s essentially against interfaith marriage.

 |  6-minute read |   03-11-2017
  • ---
    Total Shares

In what seems to be a disconcerting redux of the infamous Hadiya case, wherein Kerala High Court “annulled” a marriage between a 24-year-old woman who had converted to Islam from Hinduism to marry a Muslim man of her choice, and later, the Supreme Court asked the National Investigation Agency (NIA) to “probe” the matter, we have a curious replay of the same “love jihad” bogey, this time from the Rajasthan HC. 

The high court in the northwestern state that has been in the news for all the wrong reasons recently, has “raised question on [a] woman’s conversion to Islam, interfaith marriage”, even though the woman in question is a 22-year-old citizen of a constitutionally secular democratic republic.

The Rajasthan HC has expressed doubts over Aarifa’s wedding to a Muslim man – Faiz Modi – and has sent her to a government shelter for a week, observing that people – by which the court meant citizens – “couldn’t change their religions based on an affidavit”. The Rajasthan HC further asked the state government if there were any law or procedure in Rajasthan that dictated or governed religious conversions.

Breach of right to religion

Ironically, Rajasthan HC’s observations are in stark contravention of the fundamental right to religion under Articles 25-28 of the Indian Constitution, by which “all persons are equally entitled to freedom of conscience and right to freely profess, practice, and propagate religion subject to public order, morality and health”. In addition, the Preamble of the Indian Constitution has the word “secular” inserted in 1976 through the 42nd Amendment so that there’s no discrimination on the part of the state or any one of the three pillars of democracy – legislature, executive or judiciary – on the basis of anyone’s religion.

hadiya_110317025408.jpgPhoto: Indiatoday.in

While Rajasthan doesn’t have an anti-conversion law, the HC’s strange and unwarranted interference in the voluntary marriage of two adults is an assault on the constitutionally secular fabric of India. “We are of the opinion that whether without any procedure or rule, a person can convert to another religion or not is not established and needs to be settled,” a bench of justices Gopal Krishna Vyas and Manoj Kumar Garg said, thereby echoing what the Kerala HC had said in May this year, when it annulled the marriage of Hadiya (previously Akhila) in response to her father’s habeas corpus petition.

Breach of right to privacy/autonomy

In case of Hadiya, the Kerala HC had observed that a young woman’s doctrinal and romantic inclination towards religious studies/man belonging to a different faith is “not normal”. The division bench of Justices Surendra Mohan and Abraham Mathew pronounced that Hadiya/Akhila was not acting on her own will, but upon some external influence, thereby overriding a woman’s autonomy to choose her faith/partner and make life choices that might not be the most common.

“She has no idea as to what she wants in life. She appears to be under the control of someone else. It is evident that she has been indoctrinated and influenced by persons whose identities have not been ascertained. An attempt is made in these proceedings to give an impression that all the other players involved have acted only on the request of Ms Akhila. Such a story is unbelievable”.  

Exactly in the same unconstitutional manner, Rajasthan HC has expressed its reservation over the 22-year-old Aarifa’s embrace of Islam and her partner of choice, Faiz Modi. The HC is responding to a petition filed by Chirag Singhvi, who has claimed that his sister Payal Singhvi (now Aarifa) “was converted to Islam under coercion” and that her marriage papers are forged.

The Rajasthan HC raising doubts over the marriage is déjà vu of Kerala HC calling Hadiya’s marriage a “sham”, even as activists on the ground have repeatedly drawn attention to the fact that the woman is being tortured at her father’s home. Observers and commentators have asked what right does the court or the parent of an adult woman to question a female citizen’s embrace of a particular religion and choice of a life partner.

Noted lawyer and Supreme Court advocate Indira Jaising penned a strong piece saying the court/state has no right to breach any woman’s fundamental rights to religion and privacy, which include the right to convert to any religion.

Jaising asserted: “We have a constitution which guarantees freedom of religion which includes the right to convert to any religion. Why then must she be denied agency to convert? And why must she be prevented from marrying a man of her choice? To this, the only answer given is that her husband is recruiting for the Islamic State. Today the Supreme Court asked which law prevents a woman from falling in love with and marrying a man who is a criminal, if indeed he us one?”

Columnists have panned the Hadiya case as a breach of her fundamental right to privacy, her autonomy and a travesty of constitutionally guaranteed freedoms. Supreme Court went one step ahead and asked the NIA to probe the matter of conversion, thus robbing an adult citizen of her basic rights, and decreeing the state to turn what’s essentially a civil matter into a criminal investigation.

By asking the NIA to probe the marriage case as part of a “larger mechanism”, the court gave the dubious, ill-researched right-wing Hindutva fantasy the ring of legitimacy, even though there’s zero sociological research and data to back their claims.

Bogus ‘love jihad’ bogey

It’s shameful that Rajasthan HC, much like Kerala HC, has chosen to echo the bogus “love jihad” bogey of the rightwing Hindutva fantasists who imagine the majority religion of the country, practised by almost 80 per cent of its citizens, to be under threat. As the likes of Yogi Adityanath and others turn this fake narrative into a potent electoral weapon to drive polarisation along communal lines, many pay with their lives, victims of a society that has turned into a lynch mob.  

Much like Hadiya, even in the case of Aarifa, it’s extremely shameful of any civilised country and its elected representatives or judiciary to play politics with bodies of women, to turn female desire into a bitter contest of ideological hegemony. When manufactured narratives are deployed to promote institutional misogyny as well as religious racism, we fail our country along its wonderful soul – the Constitution.

Also read: Supreme Court ordering NIA to ‘probe’ Kerala woman’s conversion to Islam is insulting

Writer

Like DailyO Facebook page to know what's trending.