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

How can the court not respect women’s autonomy in choosing their religion, spouse and other matters of private decision-making?

 |  7-minute read |   17-08-2017
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In an astounding decision, the highest judicial body of the country has asked the National Investigation Agency (NIA) to “probe” the conversion to Islam of an adult woman from Kerala, saying her inter-religious marriage might be part of a “larger mechanism” to convert Hindu girls to Islam.

In fact, the Supreme Court has taken one step forward from the point the Kerala High Court left the woman in question in a terrible lurch, denuding her of her fundamental and constitutionally guaranteed autonomy, and essentially giving the spurious concept of “love jihad” an unseemly official recognition.

While in May this year, the Kerala HC had given the 24-year-old married woman’s custody to her father, in a move that completely undermined the woman’s – Akhila/Hadiya – autonomy, right to her own body, right to choose whom she wants to marry and cohabit with, right to practise the religion/faith she finds attractive, thereby flouting a number of constitutionally guaranteed fundamental rights and laws, the Supreme Court has lent the matter the air of criminality.

By asking the NIA to probe the marriage case as part of a “larger mechanism”, the court has in fact given 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.

Breach of fundamental rights

The 24-year-old woman – who converted to Islam to marry Shafin Jahan, her Muslim husband – has not only been stripped of her basic dignity, what the court has essentially done is deny her the right to choose matters of most intimate and private nature.

While the Kerala HC “annulled” her marriage to Shafin, it in fact chose to agree with the woman’s father in his claim that this was a case of “love jihad” – a purported wider agenda of Muslim men marrying Hindu women for conversion and increasing the demographic dividend.

The insanity of this illogic is however corroborated by not one but two of the highest judicial bodies of the land. Not only is this a case of extreme judicial overreach, this is equally a case of the judiciary itself failing to safeguard the most sacrosanct ideals of the Indian Constitution, which guarantees the fundamental rights to life, liberty, religious freedom, equality before law, against discrimination, among others, to every citizen of India.

However, as The Indian Express reports, the bench of Chief Justice JS Khehar and Justice DY Chandrachud, instead of overturning the highly embarrassing and outrageous Kerala HC judgment, chose to give it their official nod, while appointing a retired SC judge RV Raveendran to monitor an NIA investigation into the seeming cases of “love jihad”.

Supplanting woman’s autonomy

In fact, the Kerala HC judgment, which came in May, was heavily criticised by legal experts in the country, in so far as it held that an adult woman was incapable for deciding for herself what she wants to do with her sexual life, whom she wants to partner with, and which faith/religion she wants to follow. The HC had exercised “parens patriate” jurisdiction, or that of “the monarch, or any other authority, regarded as the legal protector of citizens unable to protect themselves”.

This is not only authoritarian orthodoxy raising its head, this is the very essence of how patriarchy operates at every level of our thoroughly gendered society. An adult woman is free to take decisions by herself: that’s the whole point of gender equality, the woman being an equal citizen of a free country.

Who is the state or the court or any entity that they deem a “competent authority” to decide on behalf of the adult woman, what she wants to do with her mind and body?

But the Kerala HC giving a favourable verdict to the woman’s father – KM Ashokan – filing a habeas corpus writ to bring her back home into his “custody” is a travesty of justice.

Even though the woman had expressly said she didn’t want to live with her parents, she was forcibly taken back into her father’s house. The HC judgment had lines like these:

“A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways..”

“…the petition [her father]... given custody of Akhila. She shall be cared for, permitted to complete her house surgeon course…”

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

Each of these above-quoted lines is a spectacular example of patriarchy in function. It wants “custody” for a woman – because she must be “protected”, “permitted” to pursue an education, financial independence; “marriage” is the “most important decision” of her life, which can “only” be taken with the consent of her parents (read father).

This is the patrilineal occupation of a woman’s body, existence, fixing her place in society, determining her interactions, her sexual interactions, her ideologies, her functional place in the social scheme of things, as a veritable womb, here to perpetuate a particular gene pool, so that her “deviant” trajectory that calls for religious exogamy would amount to transgression, and more. This is the ultimate control the state – in the form of the father, the court, the police, the institution of marriage – exercises on the woman every step of the way.

Legitimising ‘love jihad’

Where the Kerala HC gave the first official acknowledgement of the manufactured narrative of Hindutva’s political paranoia that is “love jihad”, the Supreme Court went one step ahead to stamp it with plausible criminality and larger conspiracy involving conversion of Hindu women to Islam by conniving Muslim men.

This narrative, that’s best exemplified in Rashtriya Swayamsevak Sangh (RSS)-driven shakhas and their attempts to engineer “ghar wapsi” of Hindu women and men, un-convert as it were, has now got affirmation from the highest judicial body in the country, even if as an item of suspicion which needs criminal probe.

Asking the NIA to investigate the “larger mechanism” in this case undermines two important components of the case: one, the woman is free to take her own decisions, even if it meant getting out of her earlier religious fold; and two, being attracted to any other faith, Islam in this case, in a perfectly valid state of mind, which is part and parcel of the fundamental right to freedom of religion under Article 25-28 of the Constitution.

Why should “conversion” be criminalised, unless there’s an inherent assumption that being part of another religion that’s not Hindu – Islam in this case – automatically lends some criminality to the existence of the followers of that faith. That’s why, even the court is being complicit in criminalising an entire religion and its freedom of being, attracting and furthering its tenets, because beneath it is the assumption that India is essentially a Hindu nation.

Not only is that a terrifying and misleading violation of the Constitution, it is the antithesis of the idea of a secular, tolerant, plural India that the founders of this 70-year-old independent country strived for. How is it possible that even the Supreme Court would fall for such potent concoctions of Hindutva imagination, undermining the very source of its judicial powers?

NIA’s compromised past

As far as the NIA itself is concerned, by now we have seen how the agency has floundered multiple times and has gone against its own findings and conclusions, in exonerating, weakening or diluting the criminal and terror charges against even those convicted of crimes.

Whether its Sadhvi Pragya Thakur, or Swami Aseemanand, the NIA’s volte-face under the Modi regime has been less than commendable, to say the least.

That the SC has entrusted an organisation whose very autonomy is suspect is only the last nail in this coffin of unfreedom that Indian citizens find themselves in.

Also read: Why the tale of my mixed marriage is a story for Love Jihadists

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