SC only allowing Hadiya to resume studies is neither freedom nor justice for love jihad case victim
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.
SC orders that #Hadiya be sent to the homeopathy college in Salem in #Tamilnadu to complete her house surgeonship. She said in court today that she wants to complete her course. This means the court will not accept her father's assertion that she is ``mentally unstable''
— T S Sudhir (@Iamtssudhir) November 27, 2017
#HadiyaCase., Hadiya to go to her college to resume her studies. Dean to report to SC in case of any situation. Dean is not appointed as her guardia. SC offers state sponsorship for studies. Hadiya says her husband can support
— Anusha Soni (@AnushaSoni23) November 27, 2017
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.
#Hadiya in SC : ``I want my freedom''. For the 25 year old who has been cut off from the world since May this year, when the HC sent her to the `custody' of her parents, the word FREEDOM means everything. The freedom to make her choice, the freedom to live her life unshackled
— T S Sudhir (@Iamtssudhir) November 27, 2017
SC directs that #Hadiya be taken to college for her studies and that college should allow facility of hostel to her. Next date of hearing fixed for third week of January[ANI]
— Live Law (@LiveLawIndia) November 27, 2017
“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.
Solidarity with Hadiya as she prepares to speak out in India's Supreme Court. Incredible patriarchy and communal prejudice of India's NIA and highest courts led to the annulment of marriage & confinement of a 24 year old woman. She must be free to choose her partner & her life
— Harsh Mander (@harsh_mander) November 26, 2017
The fact is that Hadiya first converted to Islam because she was drawn to its teachings. The constitution gives her this right. She later met her husband through a matrimonial site
— Harsh Mander (@harsh_mander) November 27, 2017
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.
#SupremeCourt #HadiyaCase bench posting academic questions to Hadiya. Justice DY Chandrachud asked what are your dreams for future. #Hadiya replied I want freedom.
— India Legal (@indialegalmedia) November 27, 2017
'Do you want to continue your studies on state's expense?' asks CJI. #Hadiya replied 'I want to but not on state's expense when my husband can take care of me' [ANI]
— Live Law (@LiveLawIndia) November 27, 2017
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.
Kerala 'love jihad' case: Kapil Sibal further told SC that when Hadiya was here, the court should listen to her, not the NIA and that she is entitled to make decisions of her life
— ANI (@ANI) November 27, 2017
Kerala'love jihad' case: Kapil Sibal appearing for Hadiya's husband Shafi Jahan, told SC that he was really saddened today, instead of asking Hadiya on what she wants, we are taking about the venom filled in news channels
— ANI (@ANI) November 27, 2017
Kerala 'love jihad' case: Kapil Sibal further told SC that when Hadiya was here, the court should listen to her, not the NIA and that she is entitled to make decisions of her life
— ANI (@ANI) November 27, 2017
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.
A 25 year old woman screaming that she needs justice. That she converted on her own will and later married a Muslim on her own will. Will Hadiya get justice? pic.twitter.com/JYQBkcwnB0
— Dhanya Rajendran (@dhanyarajendran) November 25, 2017
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.
God bless this brave woman. Intimidated by her family, by the state, the NIA, the right wing, the patriarchs, by nationalist news channels but continues to hold her ground. #Hadiya showed the mirror to a country which prides itself on being a democracy.
— Rana Ayyub (@RanaAyyub) November 27, 2017
The issue is not the legality of her marriage or her conversion , the issue for Hayadia is her LIBERTY,she got it today by an order of the Supreme Court
— indira jaising (@IJaising) November 27, 2017
Amazing that the SC did not set the brave 24 Yr old #Hadiya free to live with whoever & wherever, & had appointed college Dean as her guardian! But hats off to Hadia for holding out under such immense pressure & saying clearly that she converted freely & wants to be with husband https://t.co/qUtNXYc9g3
— Prashant Bhushan (@pbhushan1) November 27, 2017
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.