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How Supreme Court failed by delaying to restore Hadiya's marriage

Anusha Soni
Anusha SoniMar 09, 2018 | 12:26

How Supreme Court failed by delaying to restore Hadiya's marriage

On August 16, 2017, the Supreme Court had allowed the National Investigation Agency to probe the case of Hadiya. A 24-year-old woman, who had converted to Islam and married Shafin Jahan, found herself at the centre of a raging debate around "love jihad". The bench led by the then chief justice JS Khehar wanted to know if the case was a stand-alone matter or there was "something more to it".

It took eight months for the top court of the country to spell out the obvious - an adult woman can marry whoever she likes, and marriage cannot come under "probe" by the National Investigation Agency.

If one begins to trace out how the case developed at the Supreme Court, one will find how a complex and distorted argument took the centre stage. How personal liberty was pitched against "national security". A conspiracy was embraced to justify the illegal confinement of Hadiya.

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Looking at all those hearings for the past months, there is a clear change in approach the Supreme Court bench has adopted. From the point of beginning to deal with phobias of "well-oiled machinery of radicalisation" to the blurring lines between state interests and personal choices, the bench seemed to be grappling with multiple issues.

For example, during the hearing on August 10, 2017, the Supreme Court bench had observed, “the matter is not straight and simple. The sanity of the girl's mind is under question. Does the man she married has criminal records?”.

In this hearing, the apex court bench had issued notices to all parties including the Kerala government, the NIA and the father of the woman seeking their response, but did not find it fit to call Hadiya to record her statement. She wasn’t even a party in the matter.

During one of the exchanges in the court between the then CJI Khehar and counsel for Shafin, Jahan Kapil Sibbal, Hadiya was referred to as a "child" by justice Khehar. Kapil Sibal objected and said, she is an adult woman, not a child. Justice Khehar responded with a smile and said, "She is a child for us." Sibal retorted, "By that logic, even I am a child to my Lords."

This view completely changed in the coming months. The bench during the subsequent hearings in January 2018 observed, “Even if one were to believe that Shafin Jahan has a criminal record, does the law stop you from marrying a criminal.”

The court went on to say that one can't investigate a marriage of an adult woman. The court also interjected and told Hadiya's father, “Whether she was under illegal confinement or not has to be decided by her. The issues of security or criminal conspiracy must be separated from marriage."

After months of hearing, on January 23, 2018, Hadiya was also impleaded as a party in the matter.

So far, it was just her husband and father fighting in the court. The same court in August 2017 had not found it necessary to call her at the beginning of the hearing in the Supreme Court. The court had observed, “We will call the girl before passing final orders.”

In this hearing of August 2017 the top court went on to say, "Look at the blue whale challenge, people can be persuaded to do anything."

What changed the court’s view?

This stark difference in the approach that the bench adopted took place after Hadiya deposed before the apex court. The bench, now lead by justice Dipak Misra, ordered Hadiya to appear in person and record her statement.

On November 27 last year, when Hadiya finally deposed before the court, the bench was reluctant to hear her statement. Hadiya waited for more than an hour in Court No 1. She reached the court escorted by policemen, court staff at 2.55pm. Clad in a red abaya, she waited for more than an hour as the Supreme Court debated whether she should be heard at all. The court wanted to probe an academic question, "At what stage should one speak to the individual? What are the limits of personal liberty? When can the court interfere in personal choices like marriage, conversion and liberty? To everyone’s surprise, the bench was reluctant to record Hadiya’s statement.

Kapil Sibal persisted, provoked and dared the bench to record Hadiya’s statement. He questioned the court that why was she called if she wasn’t going to be allowed to speak at all. After this heated exchange, the court agreed to have a conversation with Hadiya. Justice Chandrachud questioned Hadiya on life, her dreams, ambitions and what she likes to do. After the hearing, like a good Indian parent, the court sent Hadiya back to her college to study and the dean of the college was in a way entrusted to report on any disturbing incident. Hadiya was sent back to Salem, her college. Questions continued to loom over the extent of her liberty, whether she could meet Shafin Jahan, who she accepted as her husband.

On March 8, the apex court finally reinstated the marriage of Hadiya to Shafin Jahan. It set aside the order of the Kerala High Court which had annulled the marriage. The court also told NIA that they can investigate whoever they want, but not the marital status of Hadiya.

In the words of the Supreme Court, if Shafin Jahan or anyone is trying to break the law or are being radicalised, the law has various ways to stop such individuals from committing such crimes.

As justice Chandrachud put it, “Even if one were to assume that marriage was a done as a pretext to a crime, you can’t investigate the marriage or you can’t annul it.”

The case of Hadiya was one-of-its-kind. The high court not only invoked the "loco parentis" jurisdiction, but actually became a parent to decide whether Shafin Jahan was the right person for her. If the high court feared that a certain NGO or Shafin Jahan could radicalise Hadiya and send her to Syria, why wasn’t action taken against them? Why was Hadiya locked up or confined?

Why did it take Supreme Court so long to comprehend that the criminal aspersions on Shafin Jahan, or anyone else, cannot be the reason to lock up a 24-year-old woman?

From November 27, 2017 to March 8, 2018, when the Supreme Court was convinced about the mental sanity of Hadiya then why did the court allow ambiguity to prevail over her freedom and free will?

In a deeply polarised political atmosphere of the country, the delay of the Supreme Court to reinstate the freedom and liberty of Hadiya has only given the opportunity for hate mongers to forward their agenda.

Hadiya’s story became a  flashpoint to invoke communal sentiments. Now, with the Supreme Court laying down the precedent so clearly, the case will remain a sore spot in Indian jurisprudence.

(Courtesy of Mail Today)

Last updated: March 11, 2018 | 23:07
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