The Supreme Court’s attitude to Hadiya, evidenced in its interim order on November 27, is disquieting.
Senior advocate Shyam Divan, arguing on behalf of Hadiya’s father Asokan, asked that the hearing be held in camera. In response, the court held forth on “Stockholm syndrome” and asked, “if we proceed with interviewing the girl in question, would that not amount to the court accepting that there has been no indoctrination and that she had consented to converting to Islam for the marriage with her free consent, in a competent state of mind?” This question indicates a disregard for facts. Hadiya converted to Islam well before her marriage and not “for the marriage”.
It is frightening that the SC should hesitate to hear — and respect — an adult woman’s voice to judge whether she has converted and married of “her free consent” and “in a competent state of mind”. If anything, it is women held in the illegal custody of their parents who are at risk of being bullied and brainwashed into giving up inter-faith and inter-caste relationships. Hadiya, when the SC finally heard her, was magnificently courageous in her refusal to succumb to such bullying in spite of 11 months of illegal custody in Asokan’s home.
Shorn of all diversions, what is at stake in Hadiya’s brave bid for freedom is the right of women to make life-decisions free of parental control. What is also at stake is the political and religious freedom of every citizen.
The SC directs that Sivaraj Homoeopathic Medical College, Salem, give Hadiya admission so she can complete her course to qualify as a homoeopathic doctor. The court’s interim order does concede a measure of freedom (from Asokan’s custody) to Hadiya. In response to Hadiya’s own vigilant enquiry, the SC made it clear that she could indeed meet Shafin Jahan, and in doing so, by implication, weakened the force of the Kerala HC verdict annulling Hadiya’s marriage. But while the SC order has not explicitly appointed the dean as Hadiya’s “guardian”, he has already made public statements saying she can only meet her parents, not Shafin at the hostel. However, the principal has since clarified that Hadiya can meet anyone, including Shafin.
Women’s hostels in India are notoriously paternalistic and militate against adult women’s freedom in the name of “safety”. The SC has seen fit to offer Hadiya only a liberty qualified by the rules of a women’s hostel.
But in ordering that “the NIA investigation shall continue in accordance with law,” the SC is continuing to allow the NIA the power to delegitimise a woman’s conversion and marriage and to go on fishing for links between a Muslim man and terrorism.
Let us remind ourselves that the Kerala HC verdict had argued that “As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.” For the SC not to have taken the first opportunity presented to it to set aside this blatantly regressive judicial premise is a matter of shame. The court made a valuable contribution to the historic Right to Privacy verdict: Are adult women’s rights to privacy and autonomy not worthy of protection?
It is also a matter of concern that the CPI(M)-led Kerala government which had earlier submitted that there was no evidence to merit an NIA probe, did a u-turn and asked the SC to pass a verdict only after considering the NIA report. It is a sad day for a Left party to imagine that it can credibly fight the communal agenda of the central government and the Sangh Parivar if its own government supports attempts to legitimise “love jihad”.
Hadiya’s and Shafin’s struggles for the freedom to lead a dignified life are not over. We must support them in every possible way.