01, Jan 2018 | Vandita Khanna

The Indian judiciary has gained a reputation for its tenuous tussles with the concept of religion. Interfaith marriages and religious conversion have been met with suspicion and convolutions ‘born as the result of a macabre mating ritual between patriarchy and bigotry’. ‘Love Jihad’ has been woven into a dominant caste Hindu narrative of religious extremism, Islamophobia, and communal hatred that has crept into courtroom discourse as well. In what follows, I attempt to draw certain trends in how the Kerala High Court and Supreme Court have dealt with Love Jihad, individual autonomy, and freedom of religion through an interaction of constitutional jurisprudence, judicial paternalism, and the pervasive Individual-Community-State friction.

It may be useful to contextualize the following analysis of case law within a framework that acknowledges and encourages a more nuanced study of intersecting and overlapping identities. Muslim women are constantly compelled to privilege either their gender or religion by legal and social structures of power and oppression. Intersectionality, originally coined by Kimberlé Crenshaw, is a concept that Indian courts have found difficulty in successfully grappling with, within the matrix of constitutional theory. However, social reality paints a harrowing picture of a unique marginalisation suffered and often fought by multiply burdened identities at the margins of discrimination, violence, and human rights violations. It is not often that one gets to see Indian courts factor in, and thereafter tackle, all aspects of a Muslim woman’s identity, as a woman, a woman from a marginalised minority and an Indian citizen. This failure has shattered both constitutional protections to religious freedom and personal liberty in significant ways.

A Single Judge Bench of the Kerala High Court, in the case of Sahan Sha A vs State of Kerala 2009, has taken note of the functioning of radical organisations pursuing activities of converting young girls of Hindu religion to Islam on the pretext of love. The more popular case in 2017 has been that of 24-year-old Hadiya born as Akhila, who converted to Islam and married Shafeen Jahan against her family’s wishes. Contending that she was one of many victims of love jihad who would be forcefully converted, married off, and taken to Syria to join the Islamic State, her father instituted a writ of habeas corpus before the Kerala High Court. The father of the detenue alleged that Hadiya’s conversion was not only overtly propagated and conducted by radical Muslim organisations such as the Popular Front of India (PFI), but was part of a larger motive to transport religious converts outside Indian territory.

Instead of assessing the merits of this individual case on its own veracity, K. Surendra Mohan, J. connected Hadiya’s fact situation to another writ petition regarding forcible conversion of a Ms. Athira to Islam. In that case, the investigation led to the conclusion that all relevant influential players belonged to the Social Democratic Party of India (SDPI) and Popular Front of India, who would engage in continuous phone conversations with Athira. The judiciary deemed it fit to draw similarities between the two cases as “clear and unmistakable”, and ordered investigation into the antecedents of Hadiya’s husband. Not only did the Kerala High Court direct Hadiya (continuously referred to as Akhila in the judgment transcript) to her father’s custody, but also declared the marriage between Hadiya and Shafeen Jahan to be null and void.

Jahanthen preferred a special leave petition before the Supreme Court under Article 136 against the order passed by the Kerala High Court that nullified his marriage with Hadiya. During the course of court proceedings, the NIA submitted a preliminary report to indicate that Akhila alias Hadiya’s case was not an isolated incident and required further investigation into the role of SIMI, a banned organization, in persuading vulnerable girls by adopting a common pattern of religious conversation and marriage. An SC order passed by former Chief Justice Khehar & Justice Chandrachud unfortunately reiterated the observations of the Kerala HC and ordered an NIA probe into the role of radical organisations and religious outfits that have been forcefully converting Hindu girls to the religious fold of Islam. The judicial trajectory in effect translated a particular case of interfaith marriage into one of terrorist activity. Specifically, it projected the fact of a marriage between an adult Hindu woman and an adult Muslim man into one that further entrenched xenophobic stereotypes in politics, justice, media and public life.

Institutional inconsistency within the same High Court is not unheard of, given the bench structure and polyvocality of the Indian judiciary. While condemning Hadiya to a court-proclaimed fate of Love Jihad on one hand, Chitambaresh, J. of the same Kerala High Court in the 2017 case of Anees Hameed vs State of Kerala 2017 was appalled to notice the recent trend in the state of Kerala to sensationalise every case of inter-religious marriage as either ‘Love Jihad’ or ‘Ghar Wapsi’.

While much has not been mentioned in regard to the fundamental right to freedom of religion, there seems to be a consensual obliteration of a freedom of belief and conscience, as guaranteed and protected under Article 25(1). Specifically, the court has successfully regurgitated dominant political insecurities without having been able to conceptualise where to draw the line between individual religious liberties and State intervention. The contrasting judgment in the case of Anees Hameed v. State of Kerala involved an interfaith marriage between Hindu Sruthi and Muslim Hameed under the Special Marriage Act. Here, the Kerala High Court categorically reiterated the need to protect Article 25(1) as a constitutional guarantee“to every citizen [for] the right to freely profess, practice and propagate any religion which cannot be tramped upon by subversive forces or religious outfits”. The case of Sahan Sha v. State of Kerala rightly carved out from the scope of Article 25 any entitlement to “indulge in activities for compulsive religious conversion” for “…the freedom of one should not entitle him to grab the freedom of another”. In particular, the right to propagate a religion includes within its ambit the right to communicate beliefs or expand the tenets of a particular religion, but does not entail the right to forcible, compulsive, or deceitful conversion. Problematically however, the same judgment (with a somewhat similar fact pattern as that of Hadiya) confused the individual protection to freedom of religion guaranteed under Article 25 with irrelevant considerations such as the implications on “family set up and culture”, which fail to figure as reasonable restrictions in the subjection clause to Article 25. True, our laws do not prohibit interfaith, inter-caste marriages; yet, courtroom discourse seems to indicate a strong suspicion when a Hindu converts to Islam.

Given the situatedness of Muslim women, it is imperative to interrogate the Court’s treatment of female autonomy and the extent to which the constitution generally and Articles 19(1) and 21 specifically can afford protection to the choice of husband and the decision of consensual marriage made by adult women in Indian society. The annulment of Hadiya’s marriage to Shafeen Jahan is only the first symbolic step towards infantilization of a woman who has attained the age of majority and who is otherwise deemed to possess the requisite mental and intellectual faculties, by law, to enter into a valid contract of marriage. The Kerala High Court, as per order dated December 21, 2016, has in fact dismissed the age of majority as a relevant consideration in determining the validity of marriage. Particularly,

“This Court exercising Parens Patriae jurisdiction has a duty to ensure that young girls like the detenue are not exploited or transported out of the country. Though the learned Senior Counsel has vociferously contended that the detenue is a person who has attained majority, it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married…”

Kerala High Court’s constant referral to Akhila instead of Hadiya is the second blatant obfuscation of female autonomy to convert to the faith of her choice. The female body is essentially converted into a passive site for the imposition of cultural hegemony, and at the same time the fulcrum of modesty and honor of the Hindu community. In terms of deliverables, the High Court and former CJI Khehar’s opinion exemplify complete erasure of female agency, in depriving an adult of her fundamental freedoms, in forcefully compelling her to surrender to her parents’ custody, in denying her access to any communication with her legal and legitimate spouse, and in even debating whether hearing her at the Apex Court would be a useful exercise or not.

Despite precedent from the highest court, the Indian judicial system stands true to its reputation of (selective) lack of institutional and judicial memory. Specifically, the case of Lata Singh v. State of UP, (2006) 5 SCC 475, clearly holds as follows:

“This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.”

In contrast, it is essential to appreciate the statement of the Kerala High Court in the Hadiya decision, wherein (at Para 56), the Court seems unhesitant to state that “…her [Hadiya’s] marriage being the most important decision in her life, can also be taken only with the active involvement of her parents” [emphasis supplied], thereby denying sole female autonomy otherwise recognised by legislation. Free will and the existence of coercion and influence, circumstantial and otherwise, ought to be theorized and re-imagined in academic and legal circles to understand and appreciate the nuances of consent in all cases. Selective invocation of free consent arguments in politically (and religiously) expedient debates on religious conversion is a futile exercise and an outright violation of constitutional principles that we promised to ourselves.

While the final judgment in the Hadiya case is still pending, it is important to raise a few questions that are relevant to judicial discourse on Muslim women in order to correspond legal treatment of identity categories with socially violent realities and excoriate at possible implications of the judgment on policy, religious rhetoric and public discourse. When should the State (or any instrument thereof) intervene in cases of individual freedom of religion? Does Article 25, and in extension the concept of ‘religion’ itself, require a re-conceptualization to locate the legitimacy of State intervention? In crystallising the image of an adult female as vulnerable to indoctrination and influence, is the Court attempting to seize female agency in other contexts, such as occupation, ability to contract, vote, amongst others as well? Does the, now judicially recognised, Love Jihad rhetoric, without any evidence to back it, feed into a larger language of documented fear against Islam? What then is left of the hollow principle of constitutional secularism that our Constituent Assembly swore itself to, especially when constitutionally mandated repositories of justice speak the same Islamophobic language?

(The author is a student of the Jindal Global Law School)

Related material:

Hadiya Case: Asokan KM vs Suptd of Police 2017

Anees Hameed vs State of Kerala 2017

Shahan Sha A vs State of Kerala 2009

Also read:

What exactly happened during frenzied arguments in SC

Statement by concerned citizens on the continued incarceration of Hadiya