SC only allowing Hadiya to resume studies is neither freedom nor justice for love jihad case victim

The apex court has moved her from her father’s custody to that of the college dean.

 |  8-minute read |   27-11-2017
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In the high-profile case of Hadiya versus Union of India, which can be seen either as a case of alleged “love jihad” through the lens of the National Investigation Agency (NIA) and Ashokan KM, the father, or as one that’s fundamentally determining a woman’s plea for her autonomy, her “freedom to be” — to choose love over social censure, embrace a religion and a partner of her choice — the Supreme Court of India has reached a partial verdict.

While it has “allowed” Hadiya to resume her studies in homeopathy, thereby rejecting her father’s assertion that she’s “mentally unstable”, it has put her under the (local) guardianship of her college dean, thereby denying her the true and complete measure of freedom, which for an adult citizen of India is a fundamental right enshrined in the Constitution.

The apex court on Monday, November 27, ordered that Hadiya returns to her homeopathy college in Tamil Nadu’s Salem to complete her studies, but didn’t pay much heed to her pleas of freedom in the open court, and her desperate cries for help. Hadiya said emphatically: “I want my freedom. I want to be with my husband.”

However, her deepest wish, to reunite with her husband Shafin Jahan, an inter-faith marriage that was “annulled” by the Kerala high court in May this year, has been shelved until January next year, when the SC bench would reconvene to hear this side of the story.

“I want to meet my husband. I want to complete my studies and want to live my life according to my faith and as a good citizen. I want my freedom. I have been in unlawful custody for last 11 months.”

Given that Hadiya has been in a virtual house arrest for over six months after the Kerala HC observed that her marriage to Shafin Jahan was null and void, while the Supreme Court in August asked the NIA to probe the conversion angle, citing national security and her father Ashokan’s concern that Hadiya would be taken to Syria if not stopped, the ordeal for the 25-year-old has been staggering.

It makes no sense that the Indian judiciary is even legitimising bogeys such as “love jihad” by giving it a hearing, which frowns at inter-faith marriage, as well as the freedom to choose, practise and propagate a religion of one’s choice, not only by birth.

Moreover, for the NIA and Hadiya’s father, the question of Hadiya embracing Islam has been the biggest bone of contention, as if a woman’s choice of religion and embrace of Islam can only be a matter of mental instability or indoctrination, and not something she has willed herself into, as a matter of personal liberty and conscious decision.

While the court heard Hadiya only after the insistence of her counsel Kapil Sibal, who lamented that the love jihad narrative has been the result of frenzied coverage on jingoist TV channels, and flies in the face of a woman’s autonomy, her basic right to take decisions for herself as an adult of democratic republic of India.

In fact, Hadiya has repeatedly insisted that she converted to Islam of her own volition and wasn’t forced to do so. However, the NIA and her father have maintained that Hadiya is brainwashed and is not capable of making an informed decision which is in her own interest.

That the SC today dismissed at least part of the petitioners’ claim by ordering Hadiya to pursue her studies in homeopathy, even at the expense of the state by making the college dean her local guardian, is beyond a shred of doubt.

However, it must also be questioned if the Supreme Court skirted the topic of consent in a marriage and a woman’s right to choose her partner. While the Special Marriage Act under Indian law allows marriage of those belonging to two different religion in a civil ceremony, its applicability here is questionable because Hadiya converted to Islam in order to marry Shafin Jahan.

The SC on October 30 had held consent as an adult as a matter that was “prime”, even as NIA and ex-military man Ashokan KM have alleged that a “well-oiled systematic mechanism” for conversion and Islamic radicalisation is in place, which has “indoctrinated” Hadiya.

However, what is at stake isn’t only a one-off case involving Hadiya’s right to choose a life partner and a religion, but the very democratic edifice of the nation that’s premised on the constitutionality of her personal freedom.

In fact, if the 24-year-old Akhila embraced Islam to become Hadiya, she has essentially exercised her right to religion under Article 25-28 of the Constitution of India, and hasn’t remained within the confines of the religion she was born into, something in which she had no say. By asking the NIA to “probe” the conversion angle, the SC lent the case an air of criminality, which is increasingly becoming synonymous with interfaith mixing, thereby legitimising right-wing Hindutva fantasy.

The SC has moved Hadiya from the guardianship of her father to that of the state. How does that address the pleas of the woman who is fighting patriarchy, religious orthodoxy and the State’s national (in)security apparatus to be with the man she loves?

This is only a partial restoration of Hadiya’s freedom, as it falls short of the expansive and fundamental liberty she seeks as a citizen of the secular democratic republic of India.

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