Put The Dog Down

Scales of Justice | Representational image

When real judges won’t trust a 24-year-old with knowing what’s good for her, you decide what’s more curious, real life or reality TV? 

The name Judy Sheindlin won’t ring a bell with most Indians. It might register on some if we said Judge Judy instead. Particularly on those who’ve lived in America or vicariously live the American life by watching their unique reality TV genre of arbitration court dramas. Judge Judy, anchored by Judy Sheindlin, a retired Manhattan family court judge, is a chart-topping success, in its 21st uninterrupted year. It involves rivals bringing small disputes to her on live TV after signing a contract to accept her verdict.

All that’s very fine, and very American. But why are we featuring such trivia in National Interest?

Because a hilarious and heart-wrenching viral clip from one of her shows popped up on the web with the usual “breaking the Internet” endorsement. It is Judge Judy settling a dispute between a man and a woman battling for custody of a poodle. The woman displays her vet’s prescriptions to boost her claim, but Judge Judy ticks her off. “Put the dog down,” she tells the person carrying it in the court and firmly repeats the order thrice. She wants the poodle to decide for itself. The poodle quickly makes its choice, running to the man, jumping all over him, who scoops it up in his arms as the courtroom bursts in tears and applause.

Does this make you think about something important that made our headlines this last week? I will give you some clues. It was in the Supreme Court of India. In the unlikely event that you still haven’t figured, here’s more: instead of a dog, it involved a woman whose “ownership” was contested by her parents and the man she asserts she has married. Further, this drama is from Kerala. It reached the Supreme Court because the state high court made a finding, annulling her marriage to a Muslim. Her “husband” came in appeal.

Our honourable Supreme Court bench did not ask the woman (Akhila) where she wanted to go, to which home and to which religion. Instead, they ordered India’s premier anti-terror (crime) investigating agency to go fact-finding. To ensure fairness, they also assigned a retired Supreme Court judge to oversee it. The woman, the lordships said, will be asked for her views only after the agency had given its findings. Our court would not work on that simplistic “put the dog down” doctrine.

The cast of characters in this real life courtroom drama leaves no scope for frivolity. The Supreme Court bench has two of our most respected and reflective judges: Chief Justice J.S. Khehar and Justice D.Y. Chandrachud, who is among our sharpest and youngest judicial minds. Equally, on the bar, the two contesting teams are headed by lawyers Kapil Sibal and Indira Jaising on one end, and Additional Solicitor-General Maninder Singh, Shyam and Madhavi Divan on the other. This is as high profile a case as one can be.

The bench has faced some criticism as well as praise for its decision. In fairness to the court, a few facts need to be underlined. One, the judges have not yet examined the legal merits of the case. Theirs is a one-page order for fact-finding. Second, the order states that the petitioners (from the young woman’s side) accept the NIA probe if it is impartial, which they will ensure. And third, once the facts are in, the judges will listen to the woman in a closed room. Only then will they take a final call.

Here’s the story of how we came this far. This “woman” is Akhila (who now prefers to be called Hadiya), a medical graduate from Kottayam in Kerala whose parents, alarmed by her closeness with Muslim “radical” organisations, approached the high court, pleading that she was only going to be safe in their “custody”. In January 2016, the bench rejected it, and ruled that the woman was an adult and could decide for herself. In August 2016, the parents were back with a fresh petition. Akhila, meanwhile, had moved to live with Satyasarani, a Muslim organisation, Right-wing, but not proscribed. A different bench of the high court admitted the new petition, and while the case was being heard, Akhila appeared one day with Shefi Jahan, saying she had married him.

The judges finally ruled the marriage a sham, declared her incapable of being old enough to decide what’s best for her and said she will be looked after best under the custody of her own parents. In fact, the court used the doctrine of parens patriae whereby the state has the responsibility to play parent for abandoned, surrogate children. They employed it for a 24-year-old qualified doctor. A quaint footnote: the first Kerala High Court bench had a Hindu and a Muslim judge. Both judges on the second one were Christian.

It is their order that Akhila (Hadiya) and the man she now claims to be married to, have challenged in the Supreme Court of India.

The unusual thing about the Supreme Court order, or rather intervention, is its alacrity. The judges haven’t yet gone into the merits of the high court judgement, at 96 pages brief by Indian judicial standards. It would have been important, and interesting to know what the nation’s top judges think about some problematic observations on which that order is based. Some samples:

• It is that she (Akhila) has no consistent stand or a clear idea about her life and future…is acting on dictates of some others who are bent upon taking her away from her parents.
• According to the petitioner, his daughter is likely to be transported out of India by people having links with extremist organisations. Their apprehension…that their daughter is likely to be got married to a Muslim, stands substantiated by events that have unfolded…he (the husband) also has radical inclinations as evident from his Facebook post.
• We are not satisfied that it is safe to let Ms Akhila free to decide what she wants in her life. She requires the care, protection and guidance of her parents.
• She would be safe only with her parents taking into account the fact that she is a girl aged 24 years.
• A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways…The court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age…(this duty) can be discharged only by ensuring that Ms Akhila is in safe hands.
• Her marriage being the most important decision of her life, can also be taken only with the active involvement of her parents.
• Therefore, it is only appropriate that the parents are given custody of Ms Akhila. She shall be cared for, permitted to complete her House Surgeoncy (sic) Course and made professionally qualified so that she would be in a position to stand independently on her on two legs (sic).

The Supreme Court can order an inquiry into any situation it deems fit, and by the agency of its choice. It could, however, have reflected on the implications of postponing its examination of the socially revisionist implications of the high court order. Is a 24-year-old not old enough to decide for herself? Will the age of majority be decided on a case-by-case basis by judges? Has a new judicial doctrine been proclaimed establishing arranged marriage and parental consent as a pre-requisite? Does a 24-year-old woman still need “care, protection and guidance” and only from parents? Is a Facebook post enough to declare a person a dangerous radical?

Which brings us back to Judge Judy who ordered to “put the dog down” and trusted a poodle with four legs with deciding what was good for it. Are we to not trust even 24-year-old humans to “stand independently on their two legs?”

Shekhar Gupta is Editor-in-Chief of ThePrint.

This column was written with the help of ThePrint Special Correspondent Apurva Vishwanath.