In Kerala's Hadiya conversion case, Supreme Court finally offers hope by raising important questions

In the past few months, the story of Hadiya – a 24-year-old woman from Kerala who converted to Islam and married a Muslim man last year – has made headlines and resulted in a high-profile lawsuit in the Supreme Court that involves important constitutional and ethical questions.

The story took a controversial turn in May when the Kerala High Court annulled Hadiya’s marriage to Shafin Jahan, acting on a petition filed by her father in 2016 expressing apprehension that Muslim organisations planned to take her abroad to get her to join the terrorist group Islamic State. Jahan was alleged to have links with the Popular Front of India, an Islamic political organisation suspected of involvement in terror activity. Hadiya’s conversion and marriage were also seen as part of a larger campaign of organised proselytisation in Kerala. The High Court moved Hadiya (formerly Akhila Ashokan) to the house of her father Ashokan in Kottayam district where she has since been confined against her wishes.

In August, Jahan moved the Supreme Court against the High Court’s decision to annul the marriage but this led to another controversial order. The top court directed the National Investigation Agency to determine if this was a case of alleged organised radicalisation – a conspiracy theory termed by the Hindu right-wing as “love jihad” in which Muslim men marry Hindu women to convert them to Islam. The investigation was to be monitored by retired Supreme Court judge RV Raveendran, who turned down the job. Jahan filed a second petition in the court questioning the investigation.

As the case progressed, there was a key change in the bench hearing the matter. Justice Dipak Misra took over as chief justice of India from Justice JS Khehar on August 24 and replaced him in the bench. And with this change has come a perceptible shift in the Supreme Court’s handling of the case, with Misra raising several important questions on Tuesday that Khehar did not.

The questions are: can a High Court, under Article 226 of the Constitution (which empowers High Courts to issue orders to protect the fundamental rights of citizens), annul a marriage between two consenting adults? Can the Supreme Court go beyond the subject of the High Court proceedings and order a National Investitgation Agency inquiry when the petition was merely an appeal on the High Court’s judgement?

Using special powers

The proceedings in the Kerala High Court were based on a habeas corpus petition filed by Ashokan alleging that those who had influenced Hadiya to convert to Islam would probably take her to Syria. The High Court asked the police to investigate the matter, despite Hadiya stating before the bench that she did not possess a passport.

In December, Hadiya married Jahan. And in May, delivering its final judgement annulling the marriage, the court claimed that she was at a “vulnerable age” and her decisions may not have been in her best interest.

A habeas corpus writ serves a specific purpose. It gives a court the power to order the state to ensure the physical presence of someone who has been detained and to look into whether the detention is legal. If it is found to be illegal, the court will set the person free. The writ of habeas corpus is an important element in ensuring the fundamental right to liberty guaranteed under the Constitution.

In essence, the Kerala High Court treated Hadiya’s marriage as a malafide detention and, despite her opposition, set her free by annulling it. It also placed her in the custody of her father against her will.

The answer to how the High Court expanded the scope of the habeas corpus petition to annul Hadiya’s marriage lies in an important provision in the Constitution. Ideally, the petition should have been closed the moment Hadiya appeared in court and said she was not illegally detained. That is what another bench of the High Court had done with the first petition Ashokan had filed in January 2016. To move beyond the question of illegal detention, the court, in the second habeas corpus petition, used the powers vested in it under Article 226 of the Constitution, which states:

“... every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.” 

In other words, the court claimed to protect Hadiya’s liberty by using a provision that empowers it to secure the fundamental rights of a citizen, and ended up imposing on her what she did not consider liberty.

This brings us back to the proceedings in the Supreme Court on Tuesday. Unlike his predecessor, Chief Justice Misra asked: can the High Court in the exercise of Article 226 annul a marriage?

There is a difference between annulment of a marriage and dissolution through divorce. An annulment is a legal procedure by which a marriage is cancelled as though it never happened. This can be done on grounds such as fraud, lack of consent, mental illness, underage partner/s or other prohibitions under law, or inability to consummate the marriage. In the case of Hadiya, the reason used, though not expressly stated in the High Court judgement, is presumably fraud. She was assumed to have been deceived into marrying Jahan. However, annulment has to happen in a civil court with a trial that examines evidence. Here, the habeas corpus petition was transformed, for all practical purposes, into a sort of civil trial. This is akin to the High Court usurping the powers of a civil court. This is probably why Misra questioned the annulment.

Supreme Court and NIA investigation

Significantly, Misra also questioned the Supreme Court order for a National Investigation Agency inquiry. But more crucial is the manner in which he posed this question, showing the judicial restraint that the order had missed.

On Tuesday, Misra asked senior advocate Fali S Nariman, who was in court on another matter, if the Supreme Court under Article 136 could order something that was not before the High Court? That is, whether the apex court, hearing an appeal on a High Court order, could go beyond the contents of the proceedings in the lower court and issue new directions? A National Investigation Agency inquiry had found no mention either in the High Court proceedings or in Jahan’s appeal. In response, Nariman said the court never says no to anyone under Article 136, without directly commenting on whether the investigation was right or wrong.

Litigants do not have automatic right of appeal in the Supreme Court, except in cases where High Courts provide a certificate of appeal or if a particular law under which the litigation falls allows such a right. All appeals in the Supreme Court are taken up in the form of special leave, the power to do which is bestowed under Article 136.

The exchange between Misra and Nariman assumes significance because the Supreme Court has almost unrestrained powers under another section of the Constitution that it could easily invoke to issue special orders such as the investigation in the Hadiya case. Article 142 states that:

“The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.” 

Such decrees are binding on all authorities across the country.

However, the Supreme Court has lately been criticised by legal experts such as Attorney General KK Venugopal, the government’s chief legal advisor, for frequently invoking Article 142, interfering in the domain of the executive and for judicial overreach. That Misra, at least for the time being, has not invoked Article 142 holds out hope of a remedy for drastic orders such as the institution of a National Investigation Agency inquiry in a matter involving the marriage of two consenting adults.

But even Misra, after stating that a 24-year-old woman cannot be forcibly kept in her father’s custody, said the Supreme Court would appoint another custodian. It is not clear why, having established that she is a major with free will, the court assumed she would need a custodian.

The Supreme Court will resume its hearing next week.