The Hadiya case: Has the Supreme Court nothing better to do?

Are we living in the Middle Ages? Our Constitution says “all persons are equally entitled to freedom of Conscience and the right to freely profess, practice, and propagate religion”. If today I want to be a Muslim, I have the right to be one. I went to a Christian school learnt Christianity. I respect other faiths. If tomorrow my daughter wants to become a Buddhist, Christian or Muslim, I would welcome her decision and whom she wanted to marry. The last thing I would have done is to go to Court to insist that she was “mentally unstable”, crazy or indoctrinated. We do not live at a time of Inquisition when Galileo was forced to recant his belief that the earth is a planet to avoid be burnt at the stake.

The present story concerns a girl Akhila from Kerala who converted to Islam, married a Muslim, Shafin Jahan, and calls herself Hadiya. If she had disappeared, the parents would have cause to file a habeas corpus (to produce the body). If she was alive and well. The police and the court’s duty was done. If she was dead, a criminal investigation would be registered. But no such criminal tragedy took place. Hadiya was alive and well. She was happily married. That should have been the end of the matter. Her father, Ashokan was far from satisfied. In deep, perhaps, hostile, depression, he abjured visitors at home, found relief in “puffs and pegs claiming to be an atheist. Litigation history should have ended there. His devout wife cried at the Shiva temple at Vaikom for therapy and more.

But the atheist father was at war: “I will continue my right to fight to get her (the daughter) as Akhila not Hadiya.” So the atheist’s concern (perhaps for his wife) is to get her back as a Hindu. This goes beyond the “ghar wapsi” which too is an unconstitutional social and political conspiracy.

My concern is whether courts can be used in this way? The technique invoked was the writ of habeas corpus. This is used for disappearances by the army or police or people who can’t be found. The task of habeas corpus ends where the body (dead or alive) is found. At best the court will examine whether the person acted freely and does not need medical treatment. Now look what the Kerala High Court did in its judgment of 24th May 2017. It recognized that “girls falling in love with a boy of a different religion wanting to get married to him was common.”

The law was “to accept the girl’s choice”. But it got into the irrelevant question as to who was authorized to give the girl away. The controversy was reopened. The High Court’s directions were startling: (i) the father got custody with police help of a adult daughter who was interning for a homeopath course. (ii) The marriage of 19th December 2016 was annulled (iii) a comprehensive investigation would take place whether the conversion was forcible including the role of the organizations involved (iv) action was to be taken against the investigatory officer (who supposedly got it wrong). If the Kerala High Court is right habeas corpus is the way to annul inter-faith marriage the launch a police investigation afresh and punish the previous investigators.

The purpose of habeas corpus is to deal with “unlawful imprisonments” (or, ofcourse, death). Apart from the police and army, it is a good remedy for khap panchayat incarceration. But once Hadiya was found, declared she acted on her own will, that should have been the end of the matter.

On 30th October 2017, the Supreme Court felt that in the case of indoctrination “the jurisdictional spectrum of habeas corpus” was wider. In plain words this was not really a habeas corpus case. The law of habeas corpus was rewritten. The case spread into examining if there was “indoctrination” and the husband’s association with the Popular Front of India, the larger issue. If the husband is acting illegally, deal with him not Hadiya. On 16th August 2017, a National Investigation Agency (NIA) under retired Supreme Court Judge, Raveendran entered this fray for a decent fee. That investigation is to continue.

But the procedure followed by the Supreme Court on 27.11.2017 “after due deliberation” was to think it appropriate to interact with Akhila@ Hadiya”. Although according to her now chosen name was Hadiya, the Court with the help of interpretation, was told that what Hadiya said was true. She was educated, interned to be a homeopathic doctor. Ofcourse judges are hardly qualified for such an intimidating interrogation. But as self styled experts, they restored her to her hostel, provided security and ordered the NIA to continue.

Has it come to this? First will the law of habeas corpus be used in any case of “indoctrination”? Second, will it be used against women converting to Islam (the alternative to ghar wapsi)? Third if both husband and wife declare their love and marriage, will a High Court or Supreme Court invalidate it? Fourth, under vague accusations, will a national investigation agency be appointed under an ex-Supreme Court Judge? Fifth, even with a short meeting with judges in chambers could a young girl’s future be left in limbo? Sixth, will courts intervene every time a Hindu girl converts to another religion? Seventh, will the marriage be annulled?

The Supreme Court has ventured where even the best would hesitate to tread. For an independent observer, this case resembles the advancement of Hindutva. Humility not vanity is the real quality of a judge.