Supreme Court has still not acknowledged its own role in subjecting Hadiya to a ‘judicial affront’

There are many ways to read the concurring opinions delivered by the Supreme Court in its judgement in the case of Hadiya, the25-year-old woman who converted to Islam, married a Muslim man, Shafin Jahan, and triggered off a legal and political storm.

In setting aside the Kerala High Court judgement annulling Hadiya’s marriage to Shafin Jahan, the Supreme Court, one could say, has re-affirmed the primacy of individual freedom over social mores. It would be possible to read this also as a defence of an individual’s right to choose even when one disagrees with her choice. It can also be read as a repudiation of the noxious Hindutva rhetoric over “love jihad” – that when women choose to cross the boundaries of religion and caste in choosing partners, it’s no one else’s business.

But I prefer to read this judgement as an act of judicial expiation – of the Supreme Court admitting that an unconscionable wrong was committed by the Kerala High Court in effectively imprisoning Hadiya with no basis in law.

Errors are made all the time of course, and reasonable individuals take different views on a matter without either of them being necessarily wrong. What was particularly appalling about this particular judgement of the Kerala High Court was its crass denial of Hadiya’s basic humanity and agency. Especially its willingness to treat her as her father’s chattel for having had the temerity to get married while the question of her “custody” was pending in court. Seen thus, the Supreme Court is perhaps expiating on behalf of the judiciary for guilt of being the one to trample on the basic human rights of an individual with no reasonable basis in law or fact.

‘Judicial affront’

But expiation also requires a full and complete acknowledgement of one’s wrongs. Here, the Supreme Court falls short.

Keep in mind that the appeal against the Kerala High Court’s order was filed and heard for the first time in July last year, and Hadiya was finally allowed to go her own way only in March this year. Given that she was effectively under house arrest, the appeal against the Kerala High Court judgement had to be filed by her husband Shafin Jahan. The matter was heard on six occasions between July and October last year – not one mentions the need to hear Hadiya in any way. It was only in its order on October 30 that the court was even inclined to call for her presence on the next date of hearing, that is November 27. Earlier, the court had indicated that it might hear her on some indeterminate date in the future, while she continued in her parents’ custody.

This sequence of events matters. Nearly two-thirds of the period of Hadiya’s confinement in her parent’s house was undergone when the matter was in the Supreme Court. It was only on November 27 that the court released her from virtual house arrest when this should have been the first thing they did. What explains the delay and dithering?

We don’t know and the court makes no effort to even acknowledge this, let alone offer a mea culpa. Justice Dipak Misra’s lead opinion only notes the orders which directed investigation by the National Investigation Agency (more on that later) but carefully avoids discussing the sequence of events between the first hearing and October when Hadiya was finally directed to be produced in court. Justice Chandrachud’s concurring opinion on the other hand observes that:

“But what to my mind, is disconcerting, is the manner in which the liberty and dignity of a citizen have been subjected to judicial affront. The months which Hadiya lost, placed in the custody of her father and against her will cannot be brought back.”

Yet, he fails to note that by doing nothing for four months after it was approached, it was the Supreme Court which was just as responsible for this “judicial affront” as he puts it. What is more disconcerting perhaps is that Justice Chandrachud was on the bench for the first four hearings and made no effort, on the record, to ensure that Hadiya was heard in open court about her choices. It is quite obvious from the news reports of the hearings that the concern for Hadiya’s welfare and liberty only came to the fore once Justice Dipak Misra took over as Chief Justice of India. What then should we make of Justice Chandrachud’s concern for Hadiya’s liberty and choices that has manifested itself only in the subsequent stages of the proceedings? It is also illuminating that the order dated August 16 refuses to call her by her chosen name, preferring her given name whereas the judgement refers to her chosen name most of the time, or at most clarifying that Akhila was her given name.

Investigate what?

As much as justice has been done and the wrongs committed against Hadiya remedied, to some extent, there still remains the fact that the court has not recalled the order directing investigation by the National Investigation Agency against Shafin Jahan and others. While the two concurring opinions clarify that the NIA cannot investigate the marriage between Hadiya and Shafin Jahan, one wonders what the NIA is exactly doing then. Neither the Kerala High Court nor the Supreme Court have bothered to outline which particular acts violate the “scheduled offences” under the National Investigation Agency Act, 2008 which the NIA is permitted to investigate, while at the same time directing the NIA to investigate in accordance with the law.

In writing about this case on an earlier occasion, I had remarked that courts are now themselves being seen as a threat to fundamental rights. With its judgement in Hadiya’s case, one can perhaps say that the Supreme Court has acknowledged this danger and has moved to remedy it. However, by continuing the NIA’s roving inquiry into Shafin Jahan’s antecedents and activities, we have to ask ourselves: Has it really?

Alok Prasanna Kumar is a Senior Resident Fellow at the Vidhi Centre for Legal Policy based in Bengaluru. The views expressed here are personal.