By Dushyant Shekhawat Nov. 29, 2017
SC’s judgment in the Hadiya case is an example of the judiciary acting like parochial mummy-daddies: A dangerous precedent for families that can scream “Stockholm syndrome” every time a woman marries the “wrong” kind of man.
Congratulations, Indian women. If the constant, pressing need to be independent, exercise your agency, and live life on your own terms has been getting you down, the Supreme Court has got your back. Their ruling in the ongoing Hadiya case of “love jihad” makes it quite clear that grown women can’t have the final say in matters pertaining to their own lives, especially when it comes to important subjects like who they want to marry and how they want to pray. Please get ready to live free of the burden of all that pesky decision-making, because the country’s top court doesn’t believe you’re capable of handling it anyway.
Let’s rewind. Hadiya, a medical student in Kerala, had chosen to convert to Islam and marry a Muslim man against the wishes of her family in December 2016. It’s a decision that our top court thinks cannot be attributed to free will, but to “Stockholm syndrome”. As such, Hadiya’s marriage and conversion will remain under judicial consideration, even as her fundamental rights to freedom and religion are forgotten entirely.
Pardon our French, but it seems like the Supreme Court panel had wilfully forgotten the Constitution before speaking their minds. Throwing her a bone, the court has now allowed Hadiya to live free of her family’s custody, and go back to her medical college in Salem to finish her studies. Except, she is now under the custody of the dean of the medical college.
Apparently, a 25-year-old woman has the right to vote, the right to drive, and the right to drink, but not the right to marry the person of her choice. If this isn’t a case of the judiciary acting like your parochial mummy-daddy, we don’t know what is. And worse, it is setting a dangerous precedent.
“The Supreme Court’s argument is that they didn’t know if Hadiya was in her senses. The only people not in their senses over here are the Supreme Court!” said lawyer and columnist Dushyant. “For 70 years, reformers and legislators have been fighting for the normalisation of inter-faith marriage, and the Supreme Court is undoing that progress.”
The arguments put forth by the court seem flimsy when viewed from any angle. To arbitrarily decide that Hadiya was brainwashed into her conversion and marriage requires a confirmation bias that there is an ongoing campaign of “love jihad”, which has not been conclusively proven. “Perhaps what we need to learn from this case is that if you want to have an inter-faith marriage, seek approval from the Supreme Court, and maybe carry a self-certified affidavit declaring that you haven’t been brainwashed,” he added.
Of course, the hue and cry around the brainwashing issue is a red herring distracting us from the real danger implied by this ruling – the erosion of female independence. The court has the power to say that this order has no value as a precedent and subsequent cases will be treated on their own merit, but it hasn’t even done that yet. Even if it does, by this point, the floodgates have opened for families everywhere to undermine the agency of women.
Apparently, a 25-year-old woman has the right to vote, the right to drive, and the right to drink, but not the right to marry the person of her choice.
During Hadiya’s appearance before the Supreme Court panel on November 27, senior counsel Indira Jaisingh raised an important point when she said, “Had she (Hadiya) been a man, this sort of treatment would not have been meted out to her.” To which Chief Justice Dipak Misra retorted, “How is this about gender justice?” (A day prior to the hearing, Misra had said in another context, “The fundamental rights are in the core value and the bedrock of the Constitution.” Everyone’s fundamental rights, except Hadiya’s, presumably.)
Your Honour, with all due respect, an adult woman being treated like a child and getting passed from one guardian to another is absolutely a question of gender justice. Denying Hadiya the freedom to marry outside her religion and complete her studies on her own terms, is a denial for any other woman. If her acting in a manner not approved by her parents can get her freedom revoked, so can any other woman’s.
It is especially hard to not treat this as a gender issue, when the panel of three judges on the case are only men. Perhaps a female judge might have understood the nuances that slipped by Chief Justice Misra and his two male colleagues, who seem singularly focused on exposing Hadiya’s marriage as a case of “psychological kidnapping”.
“In deciding who is brainwashed and who is not, the Supreme Court is functioning like the Supreme Khap of the country,” said Dushyant. “They needn’t be looking at who is brainwashed; the only question they need to concern themselves with, is that are there any legal grounds for separating a husband and wife whose marriage has not been rendered void? The answer is no!” For instance, if one of the parties is found guilty of bigamy or adultery, the court might step in. Otherwise, it can stay out of our bedrooms.
By forcing Hadiya to live with her parents, the Kerala High Court made it clear that the state’s institutions did not believe she had the agency to make her own choices. By failing to unequivocally overturn that ruling, and letting the question of Hadiya’s marriage and conversion remain sub judice, the Supreme Court has reinforced that belief for institutions on a national level. Though the final verdict is still pending, the level of discourse seen in the case so far does not bode well for Hadiya’s individual rights.
“If the court finally decides that she was acting of her own volition,” says Dushyant, “then they should damn well compensate her for this mess.” Maybe, it will all end well for Hadiya. But for the millions of Indian women who are only just realising that their idea of personal freedom is an illusion, this is a disappointing precedent. The court can’t fail them — it’s one of the only institutions in this country we still look up to.