Saturday, February 4, 2023
HomeOpinionOff CourtBefore you cheer Hadiya judgment, spare a thought for what it did...

Before you cheer Hadiya judgment, spare a thought for what it did not say

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The ruling utterly fails to capture the hurdles — both institutional and personal — that Hadiya had to overcome for her ‘liberty’ to be restored.

The week began with three cheers for civil liberty as the Supreme Court said the right to marry a person of one’s choice was a fundamental right.

Almost a month after the apex court summarily held that Kerala-based medical student Hadiya’s conversion to Islam and her subsequent marriage to a Muslim man was legal, a full 60-page reasoning was provided.

But what got submerged in the loud cheer for the apex court’s lofty stance on Hadiya’s liberty was that eight months were spent debating the politically built-up matter of whether a larger conspiracy existed in forcibly converting Hindu women to Islam by marrying them to Muslim men.

The bench, headed by Chief Justice of India Dipak Misra, repeatedly emphasised that “matters of belief and faith, including whether to believe, are at the core of constitutional liberty” and that “the constitution exists for believers as well as for agnostics”.

These words are indeed significant in times where communal hatred and bigotry are being normalised.

The ruling upholds personal liberty against patriarchy. But there is something critical that it chooses to ignore – key sections of what Hadiya herself said in court. She had fought a bitter battle while in virtual house arrest, cut off from the world.

In the 15-page reconstruction of facts, Hadiya’s statements, made in court, are selectively picked and conveniently quoted.

Here are some of the things the ruling should have reflected.

1. “I want my freedom” — Hadiya said this at least a dozen times in the hearing. Although she said this in Malayalam, the judges said a translation was unnecessary as they understood what “swathanthryam” meant. The statement was loaded with anguish that every delay by the apex court was loss of her freedom. For over 10 months, Hadiya was not allowed to use a cell phone, internet, or meet visitors apart from her parents.

2. “I want my husband’s companionship” — Remember that the Kerala High Court not only annulled her marriage, but also put her in the custody of her parents, citing Hindu personal law, which says an unmarried woman is the responsibility of her parents. Hadiya also told the court in Malayalam that she was “mentally harassed” by her parents.

3. “I want to stay true to my faith” — For over an hour, Hadiya stood in court quietly listening to lawyers who claimed that she was “incapacitated” and was “hypnotised”. She told the court that there was no question of a forced conversion, by categorically telling the court that she wanted to stay true to her faith.

4. “Shafin Jehan must be my guardian” — Despite Hadiya’s pleas that her husband must be appointed her guardian, if at all, the order had said the dean would be responsible for Hadiya’s safety while she is in college. Also, patronisingly, the court said the government would bear Hadiya’s educational expenses, even when she said her husband is capable of paying.

While her own father, Asokan, was contesting her mental stability, the court chose to ask her to describe her relationship with him. Many such questions were outside the purview of the matter of her marriage, which was being examined.

Significantly, Maninder Singh, the additional solicitor general who was speaking for the National Investigation Agency, insisted that Hadiya should not be allowed to speak until the NIA collects evidence that she was “brainwashed” by a “well-oiled organisation working in Kerala which supported terrorist causes”.

Hadiya’s appearance in court was the first attempt to privilege her voice. The apex court had ‘interacted’ with her on 27 November last year – a day when her red hijab stood out in the sea of black and white robes in court. She was summoned after debating for two months whether Hadiya should even be heard. The young lady stood for a full two hours with a stoic face, patiently answering all the questions from the judges.

There was also an episode when the entire courtroom burst into laughter when the CJI told Indira Jaising, a senior advocate to not “bring gender into everything”. Jaising had argument that Hadiya’s (ill) treatment was the result of her gender.

Unfortunately, none of this find mention in the court ruling. Instead, the court only notes that when she was in court, she said she wanted “to pursue and complete her studies as a student of homoeopathy at a college where she was a student, in Salem”.

The ruling utterly fails to capture the hurdles — both institutional and personal — that Hadiya had to overcome for her “liberty” to be restored. In fact, the ruling makes it appear as if the court promptly responded to her duress.

The push for live streaming of the court proceedings from a group of lawyers is a testimony to the fact that such misses are aplenty. This may not even be the first time that the apex court has done this.

Of course, many of these events are captured in detail by the media. But not every detail is ‘newsy’, so quite a few fail to make it to the stories journalists write.

There is also the question of authenticity. Court records are primary sources and, without doubt, much more reliable.

A judgment of the apex court is the best-kept record on a subject matter. The facts and antecedent events are recounted not just to arrive at a verdict, but to preserve the story for posterity. But selectively picking facts erases the troubling aspects of the case from public memory. Most of all, it deprives future generations of this information. That is a colossal disservice to the nation.

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