Top court names former judge to oversee NIA probe into Kerala marriage, triggers worries about reasoning and ramifications.
The “love jihad” case from Kerala which has reached the Supreme Court got a fresh twist Wednesday with the apex court naming a former judge to oversee the country’s top anti-terrorism investigative agency, which has been tasked to probe whether the marriage of a couple from the state is a threat to national security.
The developments, however, have also led some experts to question whether this is another instance of overreaction, if not overreach, by the top court in a case that also has strong political overtones.
Without making any reference to the term “love jihad”, Chief Justice of India J.S. Khehar Wednesday sought to know from the National Investigation Agency (NIA) whether Kerala is witnessing a conspiracy of sham religious conversions of young women to Islam.
The case centres on 26-year-old Hadiya (formerly Akhila), who by her own admission to the court began practising Islam, while in college. She left home since her conversion was not approved by her parents and chose to stay initially at an Islamic educational institution and later at a social worker’s house. With the aid of her hosts, Hadiya married Shafi Jehan, in an “arranged marriage”.
In May, justices Surendra Mohan Kuriakose and Abraham Mathew of the Kerala High Court – responding to a plea by Hadiya’s father Asokan seeking her custody – declared the marriage invalid, even though anulling a valid marriage is not permissible, even by a constitutional court in India.
The Kerala HC reasoned that it suspected the “vulnerable girl” could have been a victim of love jihad. The ruling was peppered with references to a possible conspiracy by Social Democratic Party of India (SDPI), National Front and Popular Front of India, conservative Islamic organisations with political aspirations.
Jehan appealed against the ruling in the SC, leading to a high-stakes court room battle involving top lawyers of the country – all arguing whether Hadiya willingly chose to be a Muslim and marry Jehan; even while Hadiya herself is reported to be confined in her parental home in Kerala.
Senior advocates Kapil Sibal and Indira Jaising are among the lawyers challenging the Kerala High Court ruling. Madhavi Divan, another top lawyer, is appearing for Asokan. And instead of Hadiya’s marriage, religious conversions and inter-religious marriages have taken centre stage in court.
“This is the kind of order where judicial overreach is too mild a term. It is an order that makes one fundamentally question one’s faith in the fairness and impartiality of the courts,” said Alok Prasanna Kumar, senior research fellow at Vidhi Centre for Legal Policy.
The courts, he said, have to tread cautiously given the ramifications.
“This has the potential to amplify the bigotry being propagated against religious minorities and could lead to immense harassment and intimidation of inter-religious couples,” Kumar added.
It hasn’t taken much time for the communal politics of Kerala, which often takes a violent turn, to get involved in the case. Kesari, the mouthpiece of the RSS in Kerala, last month published a 13-page cover story on love jihad focusing on Hadiya’s case. And the SDPI protested in front of the high court against its verdict.
“The RSS approach in Kerala is two pronged – to attack the Left or the atheists and to attack the Muslims to protect Hinduism from them. The love jihad theory fits in both respects,” said J. Prabhash, professor of political science at the University of Kerala.
“This will also give the Muslim organisations an opportunity to organise and agitate,” he added.
“Inter-religious marriages are quite common in Kerala and has never been an issue. The fact is that it is being talked about now, when political currents are communal,” Prabhash said.
The political currents have also seen a BJP member launch a helpline to counter plots to convert Christians to Islam, the Hindustan Times reported in June.
“My information is that Satyasarani (the organisation that Hadiya went to for conversion) has more Christian girls than Hindus. This is not one religion against the other. This is anti-nationals versus the nation,” said J.K. Nandakumar, all-India executive member of RSS.
Nandakumar denies RSS backing for Asokan or other “victims of love jihad” but sees nothing wrong in any institutional support by Hindutva groups.
“It was a personal thing first but now the case has wider ramifications,” he said.
The apex court will hear the case once the NIA submits its report. Legal experts said it is to be seen whether Hadiya or her marriage will remain central to the case that has been co-opted by political stakeholders.
Even before the investigation can begin, a government lawyer representing NIA said that the agency sees a “prima facie larger conspiracy”. The statement has led to fears that the investigation might do more harm than good.
“The court’s direction for an NIA probe is based mostly on assumptions and unverifiable theories. This could end up being either a fishing expedition or finding of guilt before a trial is conducted,” Kumar said.