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Sunday, April 11, 2021

Hadiya mustn’t be in the dock

We need to fortify constitutional freedoms against sectarian challenges

Written by Badri Raina |
Updated: December 8, 2017 1:00:29 am
Kerala conversion case Hadiya’s willful conversion to Islam seems to have become enmeshed in the overreach of “nationalist” anxieties, if not excesses. (Express Photo/Abhinav Saha/File)

In India you may stand for election on the ticket of a political party and then betray the covenant with your constituents. Next time around, you may cross over to a rival party without incurring any moral opprobrium. Likewise, if you are a corporate honcho, you may smartly cross over to a rival business house on enhanced service benefits,and sing eloquent praises of products and business practices that you may have rubbished in conference after conference. But were you to grow up rethinking some religion you were merely born into, and decide, at some point, to reject its premises and acquire some other faith, the roof of social opinion will fall on you.

For some reason, we as individuals are expected to remain loyal to a faith which did not come to us as a conscious decision — unlike many choices we may make as we assume adulthood — but was purely the result of circumstances in which we had no part. Even in the most liberated of families, the matter of religious belief always seems excluded from authorised intellectual autonomy.

Hadiya, by all accounts, studied Islamic thought for a few years, and, of her own volition, at the adult age of 22, three years before she met her husband-to-be, chose to convert to Islam. In doing so, she was merely exercising her constitutional right to profess any faith of her choice — so long as there was no evidence of coercion, or of any authenticated and legally tenable statement from her saying that she was tricked into the act. Nor has it been substantiated by any authorised medical opinion that Hadiya, when she made her decision to convert, was in an unsound state of mind. Consider also the fact that according to a recent Supreme Court verdict, the right to privacy constitutes a fundamental right — nothing is as private a choice as faith.

No contesting lawyer has yet been able successfully to show that Hadiya’s case was anything more than one of a demand for habeas corpus. That being so, once the very adult Haldiya was located and asked in the matter, the case should have closed. But no. Hadiya’s willful conversion to Islam seems to have become enmeshed in the overreach of “nationalist” anxieties, if not excesses.

Seventy years after Independence, we may have legislated to give the country a common market, but there still seems doubt that the provisions of the Constitution may operate without a dominant sect seeking to subjugate them to customary perceptions and discrete traditions. Time may come when it will be demanded that we have as many courts as we have sentiments, and that in all cases, individual choices must remain subservient to the diktats of the custodians of those sacrosanct sentiments (at one point, the practice of Sati was one of them).

Curiously, those social forces who everyday espouse the great need and desirability of national oneness, seem to be silent endorsers of such demands when they come from particular segments of society. Not for nothing do many social thinkers suspect that when the Hindu right-wing speaks of a Uniform Civil Code, what it has in mind is the universal application of Hindu civic laws across all communities — rather than a code evolved out of the best practices of all communities.

It is time to say that India’s democracy will never be truly credible until the republic adopts a provision akin to the American First Amendment. That provision secures to the citizen the absolute right to freedom of expression, which includes, most crucially, religious freedom so long as the exercise of this right does not occasion violence. The provision enjoins the state to enforce laws to protect every citizen’s right to profess and practice any religious faith. Think how much bigoted mayhem was caused in the US when Malcolm X and Cassius Clay embraced Islam; yet, they had the full protection of the law of religious freedom.

There is, of course, little hope that such a move might be considered during the tenure of the present government. Yet, the current contentions around the Hadiya and the Padmavati cases underscore the urgency of fortifying constitutional freedom of expression against sectarian social sentiments. Thought must be given to reforming Article 19(2) which, in its present form, more often than not, renders the exercise of this freedom a hazard more than a right. But this ideal is unlikely to work even after legislation is passed unless India’s investigating agencies—the CBI, NIA —are rendered autonomous of the government of the day, like the FBI and justice-enforcing institutons in the USA.

The writer taught at the Delhi University

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