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How The Courts Stole Hadiya’s Independence: A Case Of Islamophobia And Patriarchy

With the resurgence of right-wing Hindu mobilization in India and widespread Islamophobia globally, dehumanization of Muslims has become a trend now and India is not immune to it either. The case of Hadiya, a 25-year-old adult woman (who of her own free will converted to Islam in 2013 and married Shafin Jahan in December 2016) exposes the pitfalls of liberal democracy in India, where an adult woman is begging and crying for her “freedom” in the honourable Supreme Court of India. She spoke loudly and unequivocally that “Nobody forced me to embrace Islam. Shafi Jahan is my husband and I want to live with him. I am a Muslim and I want justice.” But, she was not even heard in the SC and was sent to her college in Salem accompanied by two women. Before that, the High court of Kerala had annulled her marriage and granted the custody of Hadiya to her parents.

This confinement and the annulment of  Hadiya’s marriage shows the patriarchal and misogynist inclination of our country’s courts, where an adult woman has been barred from exercising her fundamental rights as enshrined in Article 19(d), allowing the citizen to move freely throughout the territory of India, Article 21, entitling protection of personal liberty, Articles 25-28, guaranteeing the right to freedom of religion, and Article 25, empowering a citizen with a freedom of conscience and the freedom to profess, practice and propagate religion. The Special Marriage Act -1954, governs inter-religious and inter-caste marriage which are not approved by the personal laws of India.

In this case, Hadiya has clearly not been accepted as an independent adult woman and has been barred from exercising her right to self-determination by almost all parties engaged in the case:

Hadiya And Kerala High Court

Hadiya’s father KM Ashokan, after becoming aware that her daughter embraced Islam and was residing in Malappuram at her friend’s house, registered a case at a local police station and also filed a Habeas Corpus petition at the Kerala High Court alleging that his only daughter Akhila (24) had converted to Islam and that he was apprehensive that she was likely to be transported out of the country. Initially, the petition was dismissed by the Kerala HC but it was accepted the second time by a division bench of Justice Surendra Mohan and Justice Abraham Mathew.

In response, Hadiya presented her stand at the court. According to her, she became attracted to Islam about three years prior to her disappearance. She submitted that she had heard about the teachings of the religion from her roommates. She had therefore willingly attended a course at Satyasarani and had converted to Islam. She refused to accompany her parents. She has not been issued a passport and, therefore, there was no likelihood of her being taken to Syria, as falsely alleged. She also submitted that she had gotten married to one Shafin Jahan on December 19, 2016, according to Muslim religious rites.

The court held that the alleged marriage is only a sham and is of no consequence. The court held that a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. The court finally handed over the custody of Akhila to her parents and ordered an investigation into the matter.

Here the honourable HC had overlooked the Hadiya’s capacity as an adult woman who can exercise her constitutional rights in her personal choice (religion and marriage). She submitted a self-testimony to the court that everything had been done voluntarily and no force had acted behind that. But the court’s judgment was highly immature and patriarchal -“a girl aged 24 years is weak and vulnerable, capable of being exploited in many ways.

In essence, the Kerala High Court treated Hadiya’s marriage as a malafide detention and, despite her opposition in its highest form, set her free by annulling it. However, the court claimed to protect Hadiya’s liberty by using a special power enshrined in Article 226 that empowers it to safeguard the fundamental rights of a citizen and ended up imposing on her what she did not consider liberty (custody under her parents).

Hadiya And Supreme Court

In August, Shafi Jahan had moved to the Supreme Court against the High Court’s decision. The Supreme Court, however, ordered the National Investigation Agency to look into the case of the woman’s alleged conversion under the supervision of the Retired Chief Justice of India. On October 30, the court directed Hadiya’s father to present her to the court to ascertain her views on her marriage to a Muslim man, Shafin Jahan.

The court on November 27 spoke to Hadiya via a translator for nearly 20 minutes during which it asked her about her dreams and aspirations and what she wanted to do in her life. “I want to meet my husband and I don’t want any local guardian to be appointed,” Hadiya told the court.

The court asked Hadiya if she wanted to continue her studies on state expenditure. “I want to (continue my studies) but not at state’s expense when my husband can take care of me,” Hadiya replied.

She said that she had been in unlawful custody for 11 months and wanted her freedom back. “I should be considered a human being. I want to be a good citizen,” Hadiya told the Supreme Court.

As the court recorded her testimony, Hadiya repeatedly said that she wanted to meet her husband.

Hadiya’s testimony in the court shows her maturity, her confidence, and her courage. But her deposition could not be heard and considered by the honourable court. Choice of love and religion is guaranteed in the constitution but has been denied to Hadiya so far. With this, the autonomy, independence, and self-determination of a 25-year-old educated woman are infantilized. Nobody seems to be able to stomach this young bold woman exercising her choice and right. Instead, she is being branded as a victim of “Love Jihad”, a word coined by right-wing Hindu forces. Love jihad happens only in the patriarchal perspective and ultimately in the misogynist and patriarchal discourse, women are seen as baby making machines.

Till now, Hadiya’s intellectual capacity and her consciousness have been undermined and seen as though she has been hypnotized and indoctrinated by every institution of our country. However, Article 51A of the constitution assigns fundamental duties to every citizen of India and asks them “to develop scientific temper, humanism and the spirit of inquiry and reform.” But in the higher institutions of our country “hypnosis and indoctrination” are discussed and consider as actual points of argument. It raises a big question- are we progressing or regressing?

Nobody can approve of people being indoctrinated or coerced into conversion. Her conversion and marriage are still being considered as criminal acts. This is neither good for the SC nor for our society which is striving to achieve equality in all spheres of life. The Supreme Court’s ruling on Hadiya so far shows that the judiciary is not an instrument of justice but a tool for those in power, the dominant social classes. Lady Justice seems to be peeping from under the blindfold. The judiciary is interfering in the woman’s personal life. She is being tossed around like a ball from the custody of one institution to another. She is not a child but an educated grown woman who is courageously fighting Islamophobia and Patriarchy. The SC must understand this.

Hadiya And National Investigation Agency (NIA)

With the order of the SC, National Investigation Agency started a communally-tinged witch-hunt, declaring that there were organised groups preying on vulnerable Hindu women to recruit them as terrorists, as alleged by Hindutva forces and BJP government. Brinda Karat said in the party organ ‘People’s Democracy’ on the NIA’s role – “An agency whose proclaimed mandate is to investigate offences related to terrorism has now expanded its mandate by order of the Supreme Court to unearth so-called conspiracies of Muslim men luring Hindu women into marriage and forcibly converting them with the aim of joining the Islamic State (ISIS). The underlying assumption, she said, was that Hindu women who married Muslims had ‘no minds of their own.” The SC order was shocking in this matter, as it directed retired Judge Ravindran to supervise the fairness of the investigation. Justice Ravindran declined to do the honours for personal reasons, but the NIA went ahead anyway with its investigations, and its findings were kept in a sealed cover.

NIA counsel Mr Maninder Singh, supported by the legal counsel of the Central government, portrayed Hadiya’s case of “indoctrination and brainwashing in a conspiracy of ‘love jihad’, which they claimed rendered Hadiya’s consent incapacitated and invalidated.” He added that the view of the NIA should be taken into consideration while making a decision on her liberty. To prove their point, they went to a level where they cited Hadiya’s case as an example of “psychological kidnapping” and alleged that her husband had connections with ISIS.

On November 27, NIA counsel kept insisting in the top court to study the documents it claimed it had as evidence before they heard Hadiya. NIA see Hadiya as weak, victimized, vulnerable, incapable, hypnotized, indoctrinated and psychologically kidnapped and unable to represent herself in the court. The whole discourse and the narrative NIA has constructed to justify the Hindutva agenda is bogus, baseless and undermines the agency of an adult woman.

Hadiya And Kerala Government

Kerala is ruled by the Left that beats their chest about their liberal values. On November 27, Mr V V Giri, representing the State, did a U-turn and contrary to the findings of the Kerala police that there were no criminal proceedings against Hadiya or her husband, said that in his opinion, the view of the NIA should be taken into consideration while making the decision on her liberty. This was shocking – why had the Left government delegitimized the findings of its own police force?

This U-turn of the Kerala government in the top court and Brinda Karat’s article in the party organ reflect how the people in power work and how people who are not in power work, despite holding the same ideology. From the very beginning, the stand of the Kerala government was loose and insincere and did not display any genuine desire to resolve the issue. At last in the court, they surrendered to the cooked-up story of the NIA which sees Hadiya’s case an example of “psychological kidnapping, indoctrination, and hypnotization.” By toeing the same line as the NIA through V V Giri, the Kerala government indirectly gave approval to such illogical and unscientific claims of NIA and has compromised the liberal values that they claim they stand for.

Hadiya And her Parents

Akhila, only daughter of Ashokan, was sent to a medical college in Salem in Tamil Nadu by her parents to pursue her medical studies. There, she met several Muslim girls. Through them, she took a liking to the teachings of Islam and later converted to Islam on her own will and wish. Conversion of Akhila to Hadiya was an astonishing matter to Ashokan’s family. After conversion, Hadiya stopped performing the Hindu ways of worship and started worshipping as a Muslim. This led to turmoil in the family. To overcome this, she moved to her friend’s house in Malappuram in Kerala.

During this time, her father filed a petition in the Kerala HC and alleged that she had converted to Islam and that she was likely to be transported out of the country. Later, Kerala HC annulled her marriage and sent her under her parents’ custody. Hadiya later described these six months as a ‘tough time’ during a media briefing in Malayalam and Tamil. She was denied phone, TV, newspaper, confined in a room, and wasn’t allowed to talk to anyone. She said,

I have only met people I don’t like for 6 months.

They have harassed me and they have pressurized me to convert.

My parents said I am mentally unstable.

Hadiya emphasized that “my case was about the rights of an Indian, not about politics and religion.” And, in the end, she expressed her ultimate desire – “All I want is to speak to the person I love,” which she repeatedly said as she pleaded in the SC.

The trauma that one can sense from the words she used in the media briefing about her parents reflects that Hadiya is a brave, bold, courageous, determined and independent woman who is fighting the Indian socials system which sees 25-year-old women “weak and vulnerable”.

Her father’s claims that Akhila has been brainwashed and indoctrinated by the radical elements in Kerala are being supported even by a national agency like NIA. Opposing this, Faizan Mustafa, the VC of NALSAR University of Law, Hyderabad, asked–“If radicalisation is really an issue, then we must probe Hadiya’s father as well. Under whose influence is he behaving like a fanatic and making statements like ‘he cannot have a terrorist in his house’?

Further, a separate case has to be filed against Shiva Shakthi Yoga Kendra for forced conversion about which Hadiya spoke in the interview.

Hadiya And BJP

BJP, a torchbearer of Hindutva ideology, regards this as a case of  “Love-Jihad”, Hadiya as a victim and Shafin Jahan as a culprit, because doing so gives them mileage in polarizing a plural society. BJP made all efforts to inflame a communal divide and arouse a feeling of Hindu-Muslim alienation during the Jana RakshaYatra which started on October 3. Uttar Pradesh chief minister Yogi Adityanath accused Kerala Muslims of luring and converting Hindu women and the state government of going soft on them, while Madhya Pradesh chief minister Shivraj Singh Chauhan alleged that the state had become a breeding ground for Islamic terror outfits. BJP and Sangh Parivar have conspired to deny Hadiya of her autonomy and individuality.

Conclusion

Before November 27, Hadiya was known to India only through the words of her father, the media, the Kerala State, the judiciary and the Hindutva element. On November 27, Hadiya on her full authority with courage and conviction stood out and cleared all ambiguity and deconstructed all the narratives constructed around her by all the parties who have a stake in Hadiya’s case.

Now, speculation is over but an important question arises as to the testimony of National Women’s Commission (NCW) chief Rekha Sharma, who visited Hadiya on November 6 and stated that Hadiya is ‘smiling and safe’. But Hadiya’s own words in the press meeting in Salem run contrary to Rekha Sharma’s testimony. This is an injustice to Hadiya, who is going through a very tough time in her life, while her so-called defendant is wearing the mask of Hindutva and shielding the India patriarchy.

This year is a historical year for the SC, for its landmark judgment making the right to privacy a fundamental right. In spite of this, Hadiya’s conversion and marriage are being probed. Her identity as a Muslim is being questioned and vilified in the court and outside the court. This raises a big question mark on whether the right to liberty (Article 21) strictly hold for those who convert to Islam and marry a Muslim.

The integrity and honour of the Supreme Court are at stake in this case. The third week of January will bring the final judgment in this case. I am hopeful that the SC will act in a way which strengthens Hadiya’s rights and give a ruling that protects national interests.

Hope the new year for Hadiya and Shafin Jahan will be full of peace and love.

A version of this post was previously published here.

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