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Wednesday, December 01, 2021

Court versus choice

It’s a troubling question: Are courts in India becoming more ‘executive minded’ than the executive?

Written by Alok Prasanna Kumar |
Updated: December 2, 2017 12:15:46 am
Supreme court on Hadiya conversion case Hadiya’s case is to be finally decided, and one hopes the Supreme Court sees the error of the grievous wrongs committed so far and moves to rectify them. (Express Photo/Abhinav Saha)

In the way in which it has handled Hadiya’s case, the Supreme Court has made a mockery of notions of justice. A shocking and unconscionable judgment of a Division Bench of the Kerala High Court, which annulled the marriage of two consenting adults with no legal justification, denied the agency of an adult woman forcing her into the unlawful custody of her parents, and peddled unfounded conspiracy theory as fact, has not only been allowed to stand by the Supreme Court but perpetuated.

When the Kerala High Court judgment was appealed by Shafin Jahan, Hadiya’s husband, not only did the Supreme Court ignore the illegality staring it in the face, it actually widened the scope of the wild-goose chase by setting the National Investigation Agency loose in this matter. Its attempt at giving a sheen of neutrality by having the investigation overseen by a retired Supreme Court judge has come a cropper but the NIA has continued with its investigation despite having no authority in law to do so. No attempt has been made to ensure compliance with its own orders or prevent manifest injustice to the parties.

With its latest order, delivered after an interaction with Hadiya in open court, the Supreme Court has at least ensured that some part of her wishes are respected, but it remains to be seen what level of “freedom” she enjoys at the Sivaraj Homoeopathic Medical College, Salem. While the court doesn’t make it explicit, upon reading the order, one feels as though it is that of a court directing that an under-trial may be removed from police custody and placed in “judicial custody” (that is, jail). Women’s hostels in India are notorious for their draconian restrictions on the freedom of movement of their residents and it is not surprising that the college itself seems unsure of its role in this case.

The simple truth of the matter is this: The judiciary has come out and said that it does not respect a woman’s choices when they go against the majoritarian narrative of the “proper” role and place of women in society. The court has thus far been absolutely incapable of articulating a reason for continuing Hadiya’s detention. Vague allusions are made during arguments to “indoctrination”, “conspiracies” and “Stockholm Syndrome”, without providing one justifiable reason to show why she shouldn’t be free to do what she wants. Far from respecting her choices about her religion or her choice of life partner, the Supreme Court seems to think that it is doing Hadiya a favour by sending her from one prison (her parents’ house) to another (college hostel).

It is tempting to wish this away as just the case of one woman and one peculiar set of facts and circumstances. After all, courts routinely deal with inter-religious and inter-caste marriages where the parents of the woman inevitably file a criminal complaint against her husband only to find it quashed by the superior court the moment it asks the woman for her views on the matter. Even subsequent to the Hadiya judgement, the Kerala High Court deprecated the practice of alleging that all inter-religious marriages are “love jihad” and refused to entertain petitions seeking to annul the same. It is tempting to think that maybe this is just a one-off and we shouldn’t worry about the wider implications.

But that would be an act of self-deception.

This is the same court that, mere months ago, in a 9-0 verdict, held that the right to personal autonomy and freedom of choice are fundamental rights. The nine-judge bench’s unanimous and unequivocal affirmation of these aspects of the right to privacy suggested a decisive turn in the court’s approach to matters of individual liberty. Restrictions to this right had to be through law, for a compelling state interest, had to be proportional and reasonable and thus always capable of judicial review to address any state excess.

Yet, even as this judgement was delivered, Hadiya’s case was being handled as if the Puttaswamy case related to a parallel universe. What is even more disconcerting is that at least two of the judges who have been part of the Hadiya case (Justices J.S. Khehar and D.Y. Chandrachud) were also on the bench which delivered the privacy judgement. It was, in fact, Justice Chandrachud who authored the eloquent lead judgement in Puttaswamy and who, so far, has been on the benches of the Supreme Court which have committed a mockery of civil liberties, fairness and justice in Hadiya’s case.

This prompts two troubling questions: One, does the Supreme Court consider the Puttaswamy judgement, a judgement or just a fine set of essays meant to be forgotten as soon as it is convenient? Two, does the judiciary understand that it is now seen as a threat to and not a defender of fundamental rights in this country? Whether in issuing media gags against court reporting, or issuing all encompassing “directions” that close enterprises and destroy livelihoods, or as in this case, confining someone to a virtual prison without hearing her, courts in India seem to have become “more executive minded than the executive”.

Hadiya’s case is not a one-off. The case is to be finally decided, and one hopes the Supreme Court sees the error of the grievous wrongs committed so far and moves to rectify them. Complete justice in the matter requires the overturning of the Kerala High Court judgement, allowing Hadiya to be free to choose whom she wants to live with and ending the NIA’s communally-tinged witch-hunt. It is for the court to choose whether it wants to be an unwitting proxy for the divisive agenda being peddled by communal and patriarchal forces or it will stand for the rights of all individuals to make their own choices about their lives.

The writer is an advocate and senior resident fellow of the Vidhi Centre for Legal Policy based in Bengaluru. Views are personal

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