Tag: Hadiya case

Hadiya Denies Father’s Fresh Claims That She Is Under ‘Illegal Detention’

The Kerala woman’s conversion to Islam and subsequent marriage to a Muslim man resulted in a landmark ruling by the Supreme Court about the autonomy of adult women.

New Delhi: Hadiya, the Kerala woman whose conversion to Islam and marriage to a Muslim man resulted in a landmark ruling by the Supreme Court about the autonomy of adult women, has denied her father’s fresh allegation that she is under illegal detention by her husband.

According to the Indian Express, the homeopathy doctor said in a video on Saturday that she has separated from her first husband Shafin Jahan and has remarried. “The Constitution has given the right for every person to enter into marriage and get out of the relationship. It is a common thing in society. I don’t understand why society is getting irritated in my case. I am a grown-up who is capable of making decisions. When I could not continue the marriage (with Jahan), I got out of it. Now, I have married another person of my choice. I am happy and living as a Muslim. My parents are also aware about the remarriage” she said, according to the report.

The video was released a day after her father K.M. Ashokan moved a habeas corpus petition in the Kerala high court alleging that he could not reach Hadiya over the phone and her homeopathy clinic was shut.

But Hadiya said on Saturday that she doesn’t know why her father moved the high court. She did not disclose details of her new partner, saying there was no need to make them public. She has moved to Thiruvananthapuram from Mallapuram, according to Indian Express.

According to Hindustan Times, she said her “father has created troubles making it difficult for me to live. There have been cyberattacks on me which has made my life difficult. My father has always been made a tool by the Sangh Parivar forces. It is sad that he is allowing himself to be used that way.”

Hadiya also denied the claims that her phone was switched off, stating instead that she was “in constant touch with her parents”. “I have remarried and I don’t think it needs to be a subject of discussion again. I am a mature adult who is capable of taking her own decisions,” she said.

Background

Born into a Hindu family in Kottayam, Hadiya said she was drawn to Islam when studying in Tamil Nadu. She converted to that faith and married Jahan. Her father filed a habeas corpus plea in 2016, challenging the marriage. The high court nullified the marriage and ordered her to be placed in the protective custody of her Hindu parents or an institution, so that she is “prevented from being a further victim of love jihad”. The judgment was perhaps the first time that a constitutional court used this term, a conspiracy theory that claims there is a plot to convert Hindu women to Islam through marriage.

The Supreme Court in March 2018 restored her marriage and allowed her to live with her husband Jahan. The top court allowed the National Investigation Agency (NIA) to probe the incident to see if she was forced to convert to Islam. The agency later closed the case, finding no evidence to support such a claim.

Lies, Insistence and Disregard for Evidence: The Journey of ‘Love Jihad’ Laws

A spate of legislation surrounding ‘love jihad’ is justified on grounds of allegedly increasing instances of Muslim men marrying Hindu women. But is there any real evidence to support these claims?

The myth of ‘love jihad’, slayed repeatedly and supposedly laid to rest, rises yet again. 

A hydra-headed monster that’s revived time and again by a not-so-subtle conspiracy between Hindutva forces, the executive, and the judiciary, it is making yet another come back at the close of 2022. 

This time its a multi-pronged effort, starting in March with a new anti-conversion law in Haryana, followed by Karnataka on September 30 with its Protection of Freedom of Religion Act, 2022, and wrapping up the year with the Uttarakhand governor’s assent to making the draconian Uttarakhand Freedom of Religion Act, 2018 even more stringent, the Maharashtra Cabinet’s notification to snoop on interfaith marriages and relationships, and the Supreme Court eagerly trying to wade in on the wings of a fourth-attempt petition by a serial litigator from the BJP.

Currently the tally of states with ‘love jihad’ laws is 11, but keeping count is becoming difficult. 

Some, like Himachal in 2019 and Gujarat and Madhya Pradesh in 2021, have enacted stringent new replacements for their old ‘Freedom of Religion’ Acts, aimed especially at preventing Hindu women from marrying outside the faith.

Orissa (1967), Chhattisgarh (1968), Arunachal Pradesh (1978) and Jharkhand (2017) have statutes to control religious conversions, but those Acts do not enter the private sphere of marriage.

The newcomers to the party, Uttarakhand (2018), Uttar Pradesh (2020), Karnataka (2021), and Haryana (2022) unabashedly made laws with the avowed purpose of fighting what they described as a “growing trend of love jihad.”

And of course, there are other BJP-ruled states like Maharashtra, testing the waters with a notification to pry and snoop and unleash the police force on hapless young people wanting to marry outside their faith, and extending this intrusion to “relationships” also.   

This spate of legislation is sought to be justified on grounds of allegedly increasing, or even rampant, instances of Muslim men marrying Hindu women. 

The Statement of Objects and Reasons accompanying the Uttarakhand Bill informed legislators that “there have been umpteen cases of religious conversions, both mass and individual”.

It also stated that

“…[W]ith an agenda to increase strength of their own religion by getting people from other religions converted to their own religion, people do marry girls of other religion by misrepresentation of their own religion…”

It further said:

“Several instances came in notice that people convert themselves to the other religion only for the purpose of marriage with the girl of that religion and after marriage they got that girl converted into their own religion”. 

Based on these ‘instances,’ the Uttarakhand legislature made a law that not only criminalises love and inverts the burden to proof, but even allows interfaith marriages to be declared null and void if they result in conversion before or after the marriage. These sentiments were echoed by sundry chief ministers and others while introducing similar Bills in other states.

These alarmist, often incendiary, allegations of ‘love jihad’ have been a prelude to each one of the recent anti-conversion laws, but in no case have any actual facts, figures, or statistics been cited.

It therefore needs to be seen whether there is, or ever has been, any real evidence to support these claims. 

Representational image. Photo: Reuters.

Early cases

The phrase ‘love jihad’ was coined in 2009 at the Catholic Bishops Council in Kerala, when a Bishop claimed without evidence that a large number of Catholic girls were being lured into marriage by Muslim boys. But it gained currency due to two unconnected cases in the Kerala and Karnataka high courts, each arising from police complaints filed by the fathers of girls who claimed that their daughters had been kidnapped and then forced to marry Muslim youths.

Dealing with a plea for anticipatory bail by two Muslim boys, Shahan Sha and Sirajuddin, accused of converting and then marrying a Christian and a Hindu girl, Justice K.T. Sankaran of the Kerala high court passed a lengthy order on September 29, 2009, rejecting bail on grounds that it was, “Well known that there was a movement known as Love Jihad or Romeo Jihad.”

He directed the DGP of Kerala to file an affidavit answering eight questions on whether such movements existed, which organisations in India and abroad were involved, how the movement is funded, whether it has an all-India basis, how many students had been converted to Islam in the past three years, and whether there is any connection between ‘the love jihad movement’ and counterfeiting, smuggling, drug trafficking and terrorist activities. 

Having denied the boys anticipatory bail, the judge directed that copies of his order be served on the Additional Solicitor General of India as well as the Secretary, Union home ministry, with directions to file an immediate response.

Almost simultaneously, on October 21, 2009, a bench of the Karnataka high court passed an interim order on a habeas corpus petition filed by C. Selvaraj, alleging that his daughter Silja Raj had been abducted by a Muslim boy and taken from Chamrajnagar to Kerala to study Islam at a madrassa, convert, and get married. Though Silja Raj appeared and informed the court that she had converted and married of her own free will, the division bench set up a Special Investigation Team supervised by the DGP of Karnataka to investigate “the larger conspiracy of the love jihad movement”, and directed Silja Raj to stay with her parents until the SIT made its report to the court. 

The interim SIT report filed on November 13, 2009, disclosed that 24 CID teams sent to all districts of Karnataka to examine all cases of missing girls, had found no evidence of a ‘love jihad’ movement, and found that there was no ‘love jihad angle’ to Silja’s conversion and marriage with Akshar. Justices K. Sreedhar Rao and Ravi Malimath thus reunited Silja with her husband, and directed that she was free to go wherever she pleased.

The final SIT report filed by Karnataka’s DGP, D.V. Guruprasad, on December 31, 2009, disclosed that the CID had investigated 21,890 cases of girls reported missing between 2005 and 2009, and found that only 229 of them had married men of other faiths, and that conversion had taken place in only 63 out of these 229 cases. Of these 229 interfaith marriages, 149 Hindu girls married Muslim boys, 38 Muslim girls and 20 Christian girls married Hindu boys, 10 Hindu girls married Christian boys, 11 Christian girls married Muslim boys, and one Muslim girl married a Christian boy. 

More importantly, the DGP stated in his report that there was no organised attempt or movement to entice girls or women into marrying Muslims with a view to converting them to Islam.  

The Karnataka high court accepted this report after hearing the government advocate on November 6, 2013, and recording in its order:

“According to the Government Advocate, there are no incidents of love jihad in the State of Karnataka”.

In Kerala, meanwhile, Justice K.T. Sankaran was not ready to let go of the conspiracy theory he had floated.

Kerala

Kerala’s DGP, Jacob Punnose, had filed a detailed affidavit on October 18, 2009, based on 14 reports by each of the District Superintendents of Police, and four reports by the heads of state CID, police intelligence, the Special Cell, and Crime Branch. 

All eight questions posed by the hudge on September 29, 2009, were answered in the negative, making it clear that there was no organised activity or conspiracy, and that the only case in Kerala where such an allegation was levelled in the past three years, was the present one against Shahan Sha and Sirajuddin.   

The DGP said that though no concrete instances existed, since some “source information” and “allegations” had been received, the intelligence cell would continue to keep a vigil on all schools and colleges, and would deal strictly with any instances that came to light. 

Despite this, Justice K.T. Sankaran refused to allow Shahan Sha and Sirajuddin to withdraw their anticipatory bail petition on October 26, 2009, instead directing the DGP to file all 18 reports in a sealed cover, and to explain why he was willing to close the case if there “source information” and “allegations” were in existence. He also directed the Union government to file an affidavit disclosing what action they proposed to take.

On November 9, 2009, Kerala’s DGP filed the 18 reports, and an affidavit explaining that “source information” and “allegations” were unsupported by any materials or evidence, and were therefore not proof of any criminal activity or organisation, despite which the intelligence cell had been tasked with continuous vigilance and investigation of the allegations. 

The Union home ministry also filed its affidavit on December 1, 2009, in which it declared that there was no ‘love jihad’ movement or organisation in existence.  

Yet, ignoring all these affidavits, Justice Sankaran in his lengthy judgment dated December 9, 2009, proceeded to read and discard all 14 reports filed by the District SPs, and to rely instead on unnamed sources and anonymous allegations, and to hold in para 43 of his verbose judgment that, “It is clear that there is a concerted effort to convert girls belonging to particular religions to another religion.  It is also clear that this is being done with the blessings of some outfits mentioned in the Report.”

After lecturing the government on its duty to protect citizens who were allegedly converted, he went on to hold that even where children have attained majority, their parents retained a say in their future and their career. He rejected the petitioners’ applications to withdraw their bail applications, and denied them anticipatory bail.

Fortunately for Shahan Sha and Sirajuddin, this judicial insanity was redressed just a week later, when Justice M. Shashidharan Nambiar found prima facie merit in their petition for quashing the criminal complaints against them, and granted stay of prosecution. 

Nevertheless, in view of his brother judge’s observations, Justice Nambiar called for detailed reports from the District Judges of Thiruvananthapuram and Ernakulam. A year later, after noting that reports by both District Judges found that there was no evidence of ‘love jihad’ or conspiracy to convert, and that no case prosecutable case existed against Shahan Sha and Sirajuddin, Justice Nambiar on December 10, 2010, quashed the FIRs and discharged both boys from the case.

Himachal Pradesh

Adding another dose of sanity from North India, a division bench of the Himachal Pradesh high court in its August 30, 2012, judgment in Evangelical Fellowship of India v. State, held that those provisions of  the Himachal Pradesh Freedom of Religion Act, 2006 and Rules of 2007, which required persons wishing to convert to give prior intimations to the District Magistrate, and to face a prior police scrutiny, were grossly violative of the right to privacy. 

Justice Deepak Gupta, speaking for a bench which included Justice Rajiv Sharma, struck down Section 4 of the HP Act as well as Rule 3 and part of Rule 5 of the Rules as violative of Article 14 and unconstitutional. Significantly, Justice Gupta noted in Para 41:

“No material has been placed on record by the State to show that there has been any adverse effect on public order by conversion in the State whether prior to or after the enactment of the Himachal Pradesh Act.  In fact, till date only one case has been registered under this Act”.

Hadiya

But truth has never got in the way of communal zealots, and just a few years later another judge of the Kerala high court decided to pick up where Justice K.T. Sankaran had left things. 

This time it was in the case of a post-graduate homoeopathy student, Akhila, who chose to convert to Islam, adopted the name Hadiya, and perhaps without the knowledge of her parents, got married to Shafin Jahan. Hadiya’s father Asokan filed a habeas corpus petition claiming his daughter had been abducted and indoctrinated by the Islamic State, and that she should be produced in court and reunited with her parents. A division bench interviewed 23-year-old Hadiya, found that she had been privately practicing Islam for three years, after which she had formally converted, and that she was living independently of her own free will.

 Acccordingly, by its judgment dated January 25, 2016, the bench dismissed Asokan’s petition. 

Undeterred by this rejection, Asokan K.M. found a more amenable bench headed by Justice K. Surendra Mohan, who had directed police investigation in a similar case filed by Apunny Nambiar in respect of his daughter Athira. This time Asokan embellished his allegations based on the old playbook of ‘love jihad’, forcible marriage, conversion, and human trafficking to Syria or the ISIS, all of which had been debunked after comprehensive court-supervised police investigations in 2009-2013. 

Basing their infamous judgment dated May 24, 2017, entirely on fiction generated by fertile imaginations, Justices K. Surendra Mohan and K. Abraham Mathew waxed eloquent about ‘love jihad’ and human transportation, and refused to accept Hadiya’s fervent plea to be left alone to lead her own life in the manner chosen by her. 

In a bizarre inversion of law, Justice Surendra Mohan held that a 24-year old post-graduate student had no right to choose her own partner, that the parents alone had the right to get their daughter married, and accordingly annulled Hadiya’s marriage to Shafin Jahan.  

Shafin Jahan and Hadiya. Credit: Facebook/Hadiya

Shafin Jahan and Hadiya. Credit: Facebook/Hadiya

Not content with this travesty of justice, the Bench directed that the DGP of Kerala state should personally take over the investigation of Crime No. 21 of 2016 against Shafin Jahan, and club that with Crime No. 510 of 2016 in respect of Athira’s alleged forcible conversion. He was directed to carry out a comprehensive investigation into the activities of the organisations listed in the judgment, and ensure that the guilty are brought to book. The court also directed that departmental proceedings be taken against the investigating officer in Crime No. 21 of 2016 for not nailing Shafin Jahan.

Sadly, even the Supreme Court initially fell prey to the prejudice and bias created by Justice K. Surendra Mohan’s vitriolic judgment. 

When Shafin Jahan moved his special leave petition to challenge the outlandish order annulling his marriage with Hadiya, the SC in a series of orders in August 2017 directed the National Investigation Agency to take over the investigation which Kerala’s DGP had been directed to conduct, and allowed a full-fledged national and international investigation under Section 6 of the NIA Act, 2008.  

So incensed was the court by the falsehoods enumerated in the high court judgment, that it directed that Hadiya would continue in virtual incarceration until the conclusion of NIA’s investigations. 

Ultimately, it was only on November 27, 2017, that the SC finally interviewed Hadiya in open court, and acknowledged that she was an educated adult who had made her own life choices. The court thus directed that though the NIA investigation would continue, Hadiya shall be re-admitted in her homoeopathy college and hostel at Salem, where she could complete her internship, and enjoy her freedom like any other student.  

When arguments in Shafin Jahan v. Asokan concluded on March 8, 2018, the Supreme Court passed a short order setting aside the annulment of Shafin’s marriage with Hadiya, and directed that she was at liberty to pursue her life and future endeavours as she pleased. Once again, however, the court clarified that investigations by the NIA may continue. 

Finally, by a resounding judgment dated April 9, 2018, the court set aside Justice K. Surendra Mohan’s judgment, upholding the absolute right of a major to choose her life partner as well as her faith, and to change her faith if she so desired. CJI Dipak Misra, speaking for himself and Justices A.M. Khanwilkar and now CJI, Justice D.Y. Chandrachud, in his concurring opinion, minced no words in holding that faith and marriage were personal choices protected by the right to privacy, and that no third party, whether parent or otherwise, could interfere with these choices. 

Both CJI Misra and Justice Chandrachud reiterated that the NIA was free to continue with the investigations set in motion by the Supreme Court in August 2017, though it could not interfere with the marriage of Hadiya and Shafin Jahan.

This last direction is significant, as it helped nail the monstrous lie of ‘love jihad,’ which almost destroyed the lives of two young adults. 

A recurring spectre

Despite the alacrity with which it took over the Kerala DGP’s investigations, and though it cast its net far and wide as per the Supreme Court’s orders dated August 10, 2017, and August 16, 2017, the NIA could not find a single case of ‘love jihad’, nor any conspiracy, whether local or international. 

Indeed, by a written reply dated February 4, 2020, to a Starred Question, the Lok Sabha was informed by the Minister of State for Home Affairs, G. Kishan Reddy, that no case of ‘love jihad’ in Kerala has been reported by any of the Central agencies.  

It does appear, however, that no matter how many times it is exposed as a mere bogey, the spectre of ‘love jihad’ will be resuscitated by none other than the judiciary.  

Just a week before the Supreme Court set Hadiya free the Uttarakhand high court on November 20, 2017, ‘suggested’ that the state government should enact an anti-conversion law on the lines of those in Madhya Pradesh and Himachal Pradesh.  

These comments came at the hearing of a petition by the father of a Hindu girl who had eloped with a Muslim man who had converted to Hinduism. However, the petition was already moot when the comments were made, as the girl, having been confined by court orders in a place where she would be free of the influence of her parents as well as her putative husband, had at the commencement of the hearing informed the court that she wanted to return home with her parents.

Yet, after noting that the court had no jurisdiction or authority to ask the state to legislate, Justice Rajiv Sharma proceeded to suggest that, “In order to curb this tendency, the state government is expected to legislate Freedom of Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act”.  

Representative image. Photo: kgorz/Pixabay

Perhaps taking a cue from this judicial suggestion, on May 14, 2018, the government notified the Uttarakhand Freedom of Religion Act, 2018. The Statement of Objects and Reasons attached to the Bill speaks of “umpteen cases of religious conversions, both mass and individual”, of  “the presence of pseudo-social organizations with a hidden agenda to convert the vulnerable sections of other religions…”,  of “gullible people…converted by offering allurement or under undue influence”, and of “forced conversions”. 

The Uttarakhand assembly was solemnly, if inelegantly, informed in para 4 of the Statement of Objects and Reasons that: 

“We have come across incidents in which with an agenda to increase strength of their own religion by getting people from other religions converted to their own religion, people do marry girls of other religions by misrepresentation of their own religion and after getting marriage to such girls, they get them converted to their own religion. Several instances came in notice that people convert themselves to the other religion only for the purpose of marriage with the girl of that religion and after marriage they got that girl converted into their own religion”.  

Amazingly, the Statement then goes on to state that:

“Recently Hon’ble Supreme Court also took judicial notice of such instances in the cases of SLP (Crl.) No. 5777 of 2017 Shafin Jahan v. Asokan K.M. & Ors. and Writ Petition (Crl.) No. 142 of 2016 Aman Beg v. State of Madhya Pradesh & Ors.”. 

Conveniently, the Legislature was either not told, or chose to ignore, the judgment that the Supreme Court had delivered on April 09, 2018, in Shafin Jahan v. Asokan K.M. & Ors. 

Uttar Pradesh

The story of Uttar Pradesh’s ‘love jihad’ law, though not instigated by judicial pronouncements, is equally intriguing.

Since the cry of ‘love jihad’ was said to have resulted in the disastrous Muzaffarnagar riots of 2013, Cobrapost and Gulail carried out a year-long investigation culminating in a print and television report released on one October 4, 2015. The investigation, titled Operation Juliet: Busting the myth of love jihad, was based on televised stings of leading members of the Rashtriya Swayamsevak Sangh, Vishwa Hindu Parishad, Bharatiya Janata Party, and Bajrang Dal, including Union minister Sanjeev Kumar Balyan, MP from Kairana Hukum Singh, MLA from Sardhana Sangeet Som, and the Muzaffarnagar heads of the RSS and the VHP.  

Sanjeev Balyan (C), agriculture minister and a member of ruling Bharatiya Janata Party (BJP), addresses a by-election campaign rally in Muzaffarnagar district in Uttar Pradesh. Credit: Reuters

Sanjeev Balyan (centre) addresses a by-election campaign rally in Muzaffarnagar district in Uttar Pradesh. Photo: Reuters/File

Cobrapost and Gulail captured them admitting on camera that they had filed fake rape and kidnapping cases, had faked documents to show that the women concerned were minors, and that they used their clout with the police to convert routine marriages into love jihad cases.

 Importantly, the investigation revealed that not a single ‘rescued’ woman had sought the help of the Hindutva forces, nor had any of them claimed that she was a victim of kidnapping or ‘love jihad.’

Despite the comprehensive debunking of this myth by Cobrapost and Gulail, on November 21, 2019, Justice Aditya Nath Mittal of the Uttar Pradesh Law Commission presented a draft anti-conversion Bill to chief minister Adityanath. Taking a cue from the Law Commission, the CM got the IGP of Kanpur Range to set up a Special Investigation Team to investigate the phenomenon of ‘love jihad.’

On November 24, 2020, the SIT’s findings were announced by IGP Mohit Agarwal at a press conference. He revealed that there were only 14 cases lodged throughout Kanpur district during the past two years, eight of which pertained to minor girls. Three cases were closed as the girls were major, and had married their Muslim partners of their own free will, while kidnapping and forced marriage cases were registered against the male partners in the remaining 11, including those of eight minors. 

Notwithstanding the prolonged SIT probe and FIRs, however, the IGP stated to the press:

“The conspiracy part could not be established. The inquiry team also did not find any organisation to be behind the youths (accused).  Also, they were not being funded from abroad”. 

Also read: For Hindutva Gang, and Now UP Police, Each Hindu-Muslim Marriage Must Be Probed for ‘Love Jihad’

Not to be held back by anything as trivial as lack of evidence, UP’s CM got Governor Anandiben Patel to sign off an Ordinance just three days after the IGP’s press conference, criminalising conversion for marriage, reversing the burden of proof, and incorporating all the vicious elements of the 2018 Uttarakhand law, with a few more refinements thrown in.  

The Ordinance was replaced by the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, the Statement of Objects and Reasons of which blithely proclaimed that “in the recent past many such examples have come to light where gullible persons have been converted from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by fraudulent means”.   

Uttar Pradesh chief minister Yogi Adityanath. Photo: Facebook/MYogiAdityanath

An interesting aside: barely a month and a half after signing the UP Ordinance, Governor Anandiben Patel, now in Madhya Pradesh, promulgated a similar Ordinance, based on similar lack of foundation or basis, in that state.  

Another interesting aside: a series of investigative reports and personal interviews released by NewsLaundry in 2021 revealed that in seven out of the 11 cases filed by the SIT, the claims of “forced conversion” and “coercion” were denied by the alleged victims, and were utterly hollow.  

March continues

The relentless march of ‘love jihad’ laws continues even where courts have been vigilant in protecting citizens’ rights.  

While striking down certain provisions of the Himachal Pradesh Act of 2006 in Evangelical Fellowship of India, Justice Deepak Gupta noted that only one case had been registered in the six years since it was enacted. Yet in October 2019, the 2006 Act was repealed and re-enacted as the Himachal Pradesh Freedom of Religion Act, 2019; and with brazen insouciance, the provisions struck down by the high court have been brought back, multiplied many times over. 

Without a shred of evidence, the Statement of Objects and Reasons with the Bill stated that “It has been observed that there is a rise in conversions by fraudulent means…” and further, that a complete revamp of the 2006 law was found necessary as:

“The punishments provided in the Act are not as sufficient as to have a deterrent effect and therefore, adequate punishments are required to be provided on the analogy of some other States like Uttarakhand. There is also no provision to check the marriages solemnized only for sole purpose of conversion. Besides, the Act also does not provide punishment to an institution or organisation involved in conversions”. 

Coming full circle, while the judiciary has time and again acted like the B-team of communal zealots in playing up the fiction of love jihad, there has also been a marked pushback by some. 

In a scathing judgment dated 19.10.2017 in Anees Hameed v. Kerala, Justices V. Chitambaresh and Sathish Ninan of the Kerala high court recorded that they were “appalled to notice the recent trend in the State to sensationalise every case of inter-religious marriage as either ‘love jihad’ or ‘ghar wapsi’, even if there was platonic love between the spouses before”. 

The court directed police investigation and action against a Yoga Kendra that was being used for forcible indoctrination of Hindu girls who wished to marry outside their caste or religion. The court found that Anees Hameed’s wife, Aruthi Meledath had been forcibly incarcerated by her parents in this Yoga Kendra after gaining unlawful custody of her from the police, who had picked up the husband and wife from Sonepat in Haryana, brought them to Kerala, and handed the wife over to her parents. The bench reunited the couple after issuing severe strictures against the authorities.   

The Supreme Court has also weighed in strongly in favour of freedom to choose faith and partner, though not in the context of these anti-conversion laws. Having cemented the right to privacy as a fundamental right in Puttaswamy (2017), the court held that the right to choose a partner or to change one’s faith were essential elements of privacy and equality in Shafin Jahan (2018), and in Shakti Vahini (2018) it held that the right of adults to marry persons of their choice could not be interfered with by parents, communities, khap panchayats, or the authorities. 

It can only be hoped that when serial litigators try to raise this bogey yet again, the Supreme Court will have learnt from the past.

Chander Uday Singh is a Senior Advocate.

‘Love Jihad’ Ordinance Is Symbolic of Social Fabric Being Aggressively Changed: Justice A.P. Shah

The former Delhi high court chief justice says the law creates an unnecessary communal rift in a peaceful society.

The following is the transcript of a speech delivered by former Delhi high court chief justice A.P. Shah to a group of Delhi high court women lawyers on January 29. It has been edited lightly for style and clarity.

Through the preamble of the constitution of India, the citizens of India are assured that four things will be secured for them: first, justice, which is social, economic and political justice; second, liberty of thought, expression, belief, faith and worship; third, equality of status and of opportunity; and fourth, fraternity, where the dignity of the individual and the unity and integrity of the nation are protected.

This last promise, that is, of “fraternity”, with its roots in the Latin for “brother” or “brotherhood”,  points to a desire for a harmonic coexistence of people of all kinds. But when the idea of fraternity becomes fragile and on the verge of disintegration, the existence of democracy itself is threatened.

What is the ‘love jihad’ ordinance?

Unfortunately, this idea of fraternity is what is especially being tested the most in India today. We are watching this attack on this most fundamental of democratic principles play out in our backyard, through the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

This ordinance has been promulgated to combat the perceived threat of “love jihad”, a term commonly used by the Hindutva political leadership to describe interfaith relationships and marriages. The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud, and so on.

There is nothing objectionable in that in itself. But it grossly violates the freedom of conscience and the fundamental right to practise religion guaranteed under Article 25 and also strikes at the right to life and liberty guaranteed under Article 21.

Furthermore, and perhaps more troublingly, this ordinance operates on the presumption of, and even reinforces, the notion of exclusion. It presumes that some categories of the Indian population must be excluded and “othered”, and through this, reinforces the idea of communalism as a desirable end in itself.

To worsen matters still, it thrives on and perpetuates the emotion of fear: certain people are effectively being told, through such ordinances, laws and policies, that transgression will invite criminal sanction and accompanying ostracism.

How does it do this? It does in the way the law is structured, with its broad sweep, and turning many accepted principles of criminal law on their head.

Ordinarily, in any criminal case, the burden of proof is on the prosecution. Under this ordinance, however, every religious conversion is presumed to be illegal. The burden of proof (presumption of guilt) now lies on the person accused of illegal conversion to prove that it is not illegal. The offence is cognisable and non-bailable, so the police can arrest the accused without a warrant.

The ordinance requires that a person intending to convert to another religion will have to approach the district magistrate who would conduct an inquiry on the conversion.

Also read: A Day in the Life of a ‘One-Man Hindutva Army’ in Uttar Pradesh

If the conversion is for an “allurement”, or an “inducement” then it is illegal. The term “allurement” is defined very broadly. The ordinance spans the sacred and the profane. A gift, gratification, easy money or material benefit, the promise of a better lifestyle, the illusory wrath of divine displeasure or otherwise – any or all of these can amount to an allurement.

Terrifyingly, it must be noted, even a simple wedding gift can amount to an “allurement”.

Interestingly, reconversion is not illegal even if it is caused by fraud or force. So, if a person is converted voluntarily, then he might be arrested, but if he’s forced to reconvert, then there is no criminal offence.

Sentencing is most problematic. One to five years’ imprisonment is the ordinary term, and if the victim is a minor, a woman or a member of a Scheduled Caste or Tribe, the term is up to ten years. If a woman is a professor, and converts to another religion, the accused is liable to be sentenced to ten years imprisonment.

Finally, an aggrieved person can lodge a complaint against anyone, including parents and siblings. A lot of people can be brought under this net. This law is capable of great public mischief.

I find it difficult to believe that such a law could be passed by the government in a country that is governed by rule of law and the Constitution.

A.P. Shah. Credit: Youtube

File photo of Justice A.P. Shah. Photo: YouTube

Are anti-conversion laws news?

Anti-conversion laws are not new. Such laws are already in force in eight Indian states, namely, Arunachal Pradesh, Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand. However, these laws do not pertain to interfaith marriages.

A version of anti-conversion laws in interfaith marriages was floated over a century ago in a 1909 book by U.N. Mukherjee. The Hindu Mahasabha tried to gather support around the idea that Muslim men are waging “jihad” in India through love marriages. This “love jihad” is a deliberate campaign which claims that Muslim men use love, seduction and trickery to convert Hindu (and Christian) women to Islam.

The women are, therefore, told that they should keep themselves “pure” in order that they might be fit mothers of the nation.

Khap panchayats also follow a similar philosophy. The objective is essentially to subjugate women. A Khap leader even went so far as to infamously say that “only whores choose their partners”.

Also read: Uttar Pradesh’s ‘Love Jihad’ Law Is a Moment of Glory for Hindutva Foot Soldiers

In reality, this is all wrong. There were NIA (National Investigation Agency) inquiries carried out in cases in Karnataka and Kerala, for instance, in Hadiya’s case, all allegations of “love jihad” – that Muslim men are waging jihad through such marriages – has been proven to be wrong.

Actually, interfaith marriages are still a rarity. Over 90% of marriages in India are still arranged marriages or approved by families, and involve persons of the same faith or religion. Very few marriages are inter-caste (I believe less than 5%), and an even smaller number (around 2-3%) are interfaith.

Further, according to reported 2011 census data, 79.80% of the population of India is Hindu, 14.23% Muslim, 2.30% Christian, 1.72% Sikh, 0.70% Buddhist, and 0.37% Jain. So, in practical terms, this ordinance is aimed at the smallest percentage. This brings us back to full circle to the concept of exclusion and fear that such laws are attempting to prop up.

In truth, this ordinance runs contrary to the spirit of interfaith and inter-caste harmony that has been advocated for decades in India. Ambedkar was a big votary of this and recorded it emphatically in his Annihilation of Caste. Indeed, Ambedkar is also credited with demanding that the word “fraternity” be included in the Preamble to our constitution, which ties in closely with notions of interfaith and inter-caste harmony.

I have personally experienced it when a Muslim college friend decided to marry a Hindu girl from an influential family, which made all efforts to thwart the relationship, including bringing the police in. The matter eventually reached the Bombay high court, where Justice G.N. Vaidya quashed all kidnapping and other charges, and in a very emotional moment, delivered the judgement, giving them his blessings.

Indeed, my own marriage is interfaith, as is among one of my children. Such relationships should be celebrated. Instead, we are criminalising them.

How can the judiciary help?

The next obvious question to ask is, with the executive and the legislature having failed us on this front, what can the third arm of government, that is, the judiciary, do?

The ordinance has already taken its toll. There are large scale arrests of people. Every day one reads stories of separated couples. It is clear that the ordinance must be struck down immediately, and certainly not permitted to be enacted into statute. At least three other BJP-ruled states are contemplating the adoption of similar laws. We need to stop this utter destruction of freedoms guaranteed by the Constitution. This can only be done by the judiciary.

As ever, high courts in India have held their own and have delivered stellar judgements that reinforce the principle that individual autonomy is all that matters in interfaith marriages.

In a recent case, even a division bench of the Allahabad high court in Uttar Pradesh held that “marriage is a matter of choice, and every adult woman has the fundamental right to choose her partner”. Even if such a decision encourages other important decisions, including the choice of religion, the state cannot intervene. It overruled an earlier decision of a single judge holding that conversion to Islam was valid only when it was predicated on a change of heart and on an honest conviction.

Allahabad high court. Photo: allahabadhighcourt.in

Indeed, at least two high courts (Allahabad and Gujarat) have shown great courage in granting relief under such discriminatory laws. As far as I am aware, even the Himachal Pradesh high court has held that the requirement under the Special Marriage Act of giving prior notice of 60 days is not mandatory.

If we look at Supreme Court jurisprudence on Article 25, of the Constitution of India, which guarantees the freedom to profess, practise, and propagate one’s religion, in the 1954 case of Ratilal Panachand Gandhi versus State of Bombay, the court held that:

“Every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others.”

In a 1977 decision in Rev Stainislaus versus State of Madhya Pradesh, the Supreme Court examined whether the right to practise and propagate one’s religion also included the right to convert. The court upheld the validity of the earliest anti-conversion statutes: the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967.

The court said that the right to propagate did not include the right to convert any person, noting as follows:

“It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”

The court further said:

“It has to be appreciated that the freedom of religion enshrined in the Article [25] is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s own religion.”

In my opinion, the decision in Stanislaus is flawed and must be revisited. However, this is not the subject of discussion today. Neither of these Supreme Court cases dealt with the question of freedom of choice in the context of religion and marriage. Most recently, in the now well-known Hadiya case, the Supreme Court said that the Kerala high court had transgressed on Hadiya’s constitutional rights by questioning her right to marry.

But I still worry.

Already the Supreme Court has refused to stay this ordinance. The Chief Justice of India has made some observations about whether falling in love is a crime, etc., but nothing beyond that.

Unfortunately, there seems to be no parity when it comes to the exercise of power by the Supreme Court. Some issues, like farm laws and Maratha reservations capture the court’s attention, but others, like the Citizenship Amendment Act, Article 370 and Kashmir, electoral bonds, and this “love jihad” ordinance, mysteriously do not evoke a response.

Hadiya is an individual case. My fear is that the Supreme Court may not be as proactive when it comes to the larger question of the constitutionality of the ordinance itself. It may end up just sitting on the issue when it comes up before the court.

Our Supreme Court is regarded as one of the most powerful courts, but is it really, especially regarding constitutional protections?

Also read: ‘My Boy Is Mentally Unstable Minor’: Mother of Muslim Teen Accused of ‘Love Jihad’ in UP

Why should we be concerned?

In this context, you may well ask, why should ordinary people be concerned.

The ordinance itself is mostly rhetoric. This is a mechanism for the ruling party and politicians to pander to vote banks and create factions in society. So we should treat all this with appropriate caution and wariness.

More than whom it targets, the ordinance and the accompanying rhetoric is symbolic of how social fabric is being aggressively and fundamentally changed by the sheer brute force of the executive. I think this is what should be troubling us.

You can see that overall, the ordinance does at least four things: first, it reinforces the idea of a patriarchal society, a patriarchal Hindu state, to be precise. Patriarchy and “manhood” feel threatened as women get liberated in modern society.

The current BJP-led government has had a long infamous history of revivalism, seeking to return to some imagined glories of ancient Indian civilisation. This takes the form of cultural nationalism, where anyone celebrating “western” festivals such as Valentine’s Day or even couples merely holding hands are ostracised and attacked.

As religious nationalism, it endorses the two-nation theory, which envisages a nation under Hindu rule, a Hindu Rashtra in Akhand Bharat (a United India). As Sarvakar propounded, “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture).” In this context, Muslims and Christians are viewed as foreigners, who are not indigenous to the territory of India, and whose religion originated in a separate holy land.

The government is operating with a stated, explicit communal agenda – of pitting community against community, whether it is in the Citizenship Amendment Act protests, where it was Hindus versus Muslims, or in the case of the ongoing farmers’ agitation, where it is being portraying as a dangerous Khalistani revival.

A protest against Hindutva. Photo: Alliance for Justice and Accountability

This brand of nationalism that is being practised in India today is no longer about merely harassing people for public displays of affection. It is much much more grave, and slowly creeping into every aspect of our lives.

People are being forced to sign up to a singular ideology. The beef ban and protests against cow slaughter are ways to prevent people from eating the food they want and effectively forcing a life choice on them.

What our leaders and their sycophants forget is that enforced nationalism cannot promote true culture. When a practice is arbitrarily prescribed and foisted, creative freedom is suppressed or vanishes completely. Only free souls can create abiding cultural values

Second, this ordinance pursues a regressive agenda. It demands that individual autonomy and free will must always be subjugated to community purpose. And of course, that community purpose itself is defined by a few individual men, who are presumed to know what is best for the rest of society.

The ordinance discusses only third party conversion of a person. It ignores a person’s own right to convert to another religion, which, surely, is far more important. Even if no conviction takes place, this has the effect of evoking fear in the minds of the minority.

Third, and for me, most troublingly, it denies agency to at least half, if not more, adult members of the population. Besides minors, the ordinance specifically identifies women and members of a Scheduled Caste or Tribe as “vulnerable” individuals. Clearly, it means that a woman cannot think for herself, however educated or accomplished or experienced she might be. This attitude is chauvinistic and reeks of male supremacy. If this is not lawmaking at its paternalistic worst, I do not know what is.

And fourth, the ordinance and those who support it, effectively support divisiveness. It creates an unnecessary communal rift in a peaceful society.

So much time and resource is wasted on this rhetoric and agenda, when we should be thinking about important policy matters, such as ensuring the right to livelihood and healthcare in the times of a pandemic.

Is this a society we want to live in?

Woman’s Autonomy Can’t Be Denied Under the Garb of Protection: Petition Opposes UP Ordinance

The application filed by the Association for Advocacy and Legal Initiatives also says the anti-conversion law promotes right-wing conspiracy theories such as ‘love jihad’ and ‘ghar wapsi’.

New Delhi: Intervening in the proceedings against the anti-conversion ordinance promulgated by the Uttar Pradesh government, a women’s rights group has said that the law promotes right-wing conspiracy theories such as ‘love jihad’ and ‘ghar wapsi’, while denying a woman’s right to autonomy.

The application filed by the Association for Advocacy and Legal Initiatives was accepted by the Allahabad high court. According to LiveLaw, the application alleges that the ordinance has a ‘disproportionate impact’ on the constitutional rights of women, as well as an egregious impact on the constitutional rights of all citizens.

The organisation has also opposed the UP government’s claim that conversion for marriage is not out of choice but solely due to the intervention of personal law. It said that there is no conflict in law between an individual’s right to choice in marriage and the right to practice a religion of one’s belief, as the Special Marriage Act allows inter-faith marriages. It said:

“…there is no compulsion to convert one’s religion under personal laws to exercise the choice to marry someonc outside one’s faith. It is only those persons who wish to practise the faith of their marital partner who choose to convert their religion for the purpose of marriage.“

The organisation says there is no systemic compulsion to convert one’s religion to marry a person of another religion.

The application says by outlawing conversion for the sole purpose of marriage, the ordinance “infantilizes the legitimate choice made by an adult person” who voluntarily chooses to opt for a way of life by converting their religion to their spouse’s. The organisation has cited the Supreme Court’s verdict in Hadiya case which says the state cannot interfere in the private lives of citizens, especially in affairs pertaining to the choice of spouse in marriage.

The ordinance prevents women from exercising their autonomy and right to take decisions as adults under “the garb of protection”, the organisation says, according to LiveLaw. It adds:

“The impugned Ordinance if tested with strict scrutiny, reveals that the absence of a narrow definition of “aggrieved person”, and the broad provision allowing family relatives to file FIRs, leads to complete annihilation of the individual autonomy and liberty of women who are given no say in determining the legitimacy of their conversion if it is followed by marriage. The impugned Ordinance promotes gender stereotypes which views the right of the family or community as supreme and while treating women as repositories of ‘honour’, deprives her of her personality, privacy and dignity.“

By providing enhanced punishment for the conversion of a woman, the ordinance presents women as the ‘weaker’ partner in a marriage, the application says. “Such notions when reinforced by statutes promote gender stereotypes that are prejudicial to the interest and right to equality of women, and fail to pass the test of strict judicial scrutiny,” it says.

Also Read: Legal Howlers in UP’s ‘Anti-Conversion’ Law Expose its Real Intent

Strengthens conspiracy theory of love jihad, promotes ‘ghar wapsi’

The Association for Advocacy and Legal Initiatives adds that ordinance “is a legislative attempt to strengthen the sentiment that marriages solemnized between persons born to different religions are a social evil which is being perpetrated by Muslim men who marry Hindu women, and that the same poses a threat to the Hindu community”.

It says in Uttar Pradesh, the rhetoric of ‘love jihad’ has been allowed to “run riot and vigilante groups and relatives of young Hindu women have ‘villainized’ the Muslim men with whom they are in consensual relationships”. Judicial institutions cannot remain “oblivious” to such ground realities, the application says.

Section 3 of the ordinance says that “reconversion” to a person’s “previous religion” is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on. This, the application says, creates an “unreasonable classification” between “conversion and reconversion” under.

“The distinction between conversion and reconversion is not based on any rational classification having a proximate nexus with a legitimate object, and is thus arbitrary in nature. The only permissible classification ought to be between free and voluntary conversion and forced conversion, irrespective of the earlier religion of the person converted.”

Such ‘arbitrary’ classification leads to the “irresistible conclusion” that the ordinance seeks to provide “legal sanction to the notion of ‘Ghar Wapsi‘ propagated by various right wing Hindu organizations in the state”.

A ‘ghar wapsi’ in Agra in 2014. Credit: PTI

Violates the right to privacy, reverses burden of proof

By making the procedure of declaration mandatory, the ordinance “pierces the zone of privacy” in which an individual chooses to exercise their right to convert their religion, and “makes public the most intimate and private spheres of an individual’s personhood”, the application says, according to LiveLaw.

The organisation submitted that it is established that in any criminal case, the burden of proof as a general rule shall always be on the prosecution to prove the guilt of the accused person.

However, the ordinance presumes that every religious conversion is unlawful and places the burden of proof on the person who has facilitated the conversion to prove that it is not unlawful.

“The reversal of burden of proof is only permissible when there are some ‘special facts’ within the knowledge of the accused which the accused can easily prove or disprove, and the same has been held to not result in unreasonable curtailment of the rights of the accused. However, in the impugned Ordinance, the burden is placed on an accused who does not have any such special knowledge.”

Since the ordinance was promulgated, at least two cases have provided credence to the assertion that it seeks to target Muslim men. In one instance, police in Bareilly admitted that three Muslim were wrongly framed under the law. In another case, the government admitted in court that it did not have evidence that two Muslim men accused of trying to convert a Hindu woman. The woman supported the Mulsim man, saying he was framed by her husband because he had supported her when she faced domestic violence and “mental torture”.

Can the BJP Breach the South?

Though the BJP has not been able to make significant gains in the South, it remains to be seen how much longer that remains the case.

The BJP failed to breach South India and it still remains unconquered, but the question is why did the South vote differently? And how long can it prolong this?

Tamil Nadu and Kerala voted against the BJP along more visible ideological and political reasons. Tamil Nadu went through an anti-Brahmin movement that brought in the Dravidian parties, representing the Shudras, and managed to implement affirmative action policies for the backward castes during the colonial era. It has remained as an exception to the 50% cap on implementing reservations.

The BJP’s attempts to malign Periyar as anti-Hindu and desecrating his statue drew wide-scale public resentment, including from the likes of Rajinikanth, who enjoyed proximity to the BJP. Unlike in Bengal, where the desecration of Ishwar Chand Vidyasagar’s statue was projected as anti-Hindu and thereby polarising, bringing in a more robust Hindu identity; the same attempted strategy failed to yield results in Tamil Nadu.

Also Read: In Tamil Nadu, Anti-BJP Sentiment Helps DMK Secure Lok Sabha Front, But Nobody is Really Happy

The BJP also got its alliance wrong in terms of occupying the space created by the demise of chief minister J. Jayalalithaa. Further, DMK chief M.K. Stalin offered an ideological resistance to the BJP in projecting it as anti-South and pro-Hindi, and a more open critique of Modi and his role in withholding funds to the state during the floods. In a sense, the BJP was caught without an effective narrative, the situation that much of the opposition found itself in the rest of India.

M.K. Stalin. Credit: PTI

Kerala also offered stiff resistance under the leadership of Pinarayi Vijayan. The mobilisation of the BJP-RSS combine around the issue of women’s entry to Sabrimala gained some initial traction, but counter-mobilisation presented an effective alternative, even if it was only in reinforcing a Constitutionalist vision.

The RSS had made early inroads into Kerala under the watch of Golwalkar and effectively runs a large number of shakhas. Kasaragod and Mallapuram were identified as the ‘hub’ of ISIS activities and it was noted on the global map of terrorism with a few recruits to the ISIS. The RSS managed to also create a controversy around its pet issue of conversion with the infamous Hadiya case. In spite of all these issues and narrative of a sense of hurt sentiment of the Hindus, the BJP found no traction.

Alongside the role of the Communist party, it was possible because of the social character of Kerala that included common neighbourhoods belonging to different religions. This was a result of the social reform movement carried out in the early colonial period by Narayana Guru. Kerala remained high in literacy and a robust welfare state with effective public health system, education and policies such as Kudumbashree poverty elimination programme for women.

Kerala also has a sizeable middle and upper middle class constituted by the Christians and the Muslims, making it difficult to erase them from public presence and memory and ghettoise them. This makes creating rumours and fake news all the more challenging.

The BJP’s success in Karnataka

Karnataka is one state that the BJP could breach by combining the question of political representation to the Lingayats with communal polarisation. The Congress managed to do well in countering it with attempts to identify Lingayats as a separate religion. It also projected Siddaramaiah, an OBC leader who is a known Lohiate with Socialist inclinations with an astute reading of the political situation, as its face. Independent and strong regional leadership in the Congress remains a prerequisite to contain the BJP.

Similarly, the BJP could not open its account in Andhra Pradesh. The strategy of the BJP to discredit N. Chandrababu Naidu by not grating the special category status and occupy the space did not work. Though the TDP lost very badly, the focus on development and garnering more resources did not allow any space to the hyperbolic nationalism of the BJP.

Also Read: Has Congress Been Delivered a Death Blow in Karnataka?

Further, the Muslim population in Andhra Pradesh is less than 9%. They are spread out, without being concentrated in a few districts and are well integrated and speak fluent Telugu. The BJP-RSS are yet to find foothold to target the Muslims or raise the bogey of Hindu khatre mein hai.

Prime Minister Narendra Modi being presented a memento by YSR Congress president and Andhra Pradesh CM Y.S. Jagan Mohan Reddy, in New Delhi on May 26, 2019. Credit: PTI

A possible future in Telangana?

The future of the BJP in the South has the best possibility in Telangana. The party won four MP seats in the recent general elections, and their vote percentage also received a jump-start. Telangana has the required social character for the BJP-RSS to ground its polarised narrative. It has a Muslim population close to 15%, concentrated in districts like Nizamabad, where the BJP defeated K. Kavitha, the daughter of chief minister K. Chandrasekhar Rao. Muslims are represented by a Muslim party under Asaduddin Owaisi’s leadership. His brother Akbaruddin Owaisi made fiery speeches against the Hindu gods and goddesses.

Also Read: BJP’s Rise in Telangana Comes as a Shock to TRS

Socially, the Muslims of Telangana are not integrated, with a negligible middle class that declined after Telugu was declared the official language replacing Urdu. Muslims preferred madrasa education in Urdu over formal education in Telugu.

There is a chequered history of communal riots in the state and popular memory of atrocities by the Nizam’s private militia called Razakars, though supported by the Reddy landlords during the heydays of the Telangana armed struggle. The atrocities of the Razakars were more about protecting the privileges of the Nizam and Reddy landlords, but in popular memory, it is registered as Muslim atrocities against Hindu women.

With the decline of Left politics, withdrawal of the Maoists from the plains and depoliticisation of Dalit politics, I fathom it is a matter of time before the BJP will storm to power and expand its base in Telangana.

KCR did well to occupy the space of Hindu identity by performing yagnas and renovating religious places and temples. There is no wide-scale resentment as yet against the welfare policies for the Muslims, including Shaadi Mubarak, and building separate social welfare hostels for Muslim students. But with a jobless growth, restless youth, continued agrarian distress may change this. The ascendant upper castes, gaining from the spread of the IT sector, find their class interests protected by the project of Hinduisation. Pending issues such as a temple sprouting attached to one of the pillars of the famous Charminar and long time social ghettoisation of Muslims provides an ideal mushrooming ground for the BJP-RSS brand of politics.

The TDP is facing a dead-end in Telangana, the social base it had with the OBCs is now shifting to the BJP. It has already become common place for youth to brandish trishuls and a saffron flag. The BJP was at the forefront of hijacking the issue of sub-division of reservations for the Scheduled Tribes, and creating the bogey of terrorism with the appointment of G. Kishan Reddy as minister of state for home.

KCR has bought time for himself by remaining close to the BJP and focused on disallowing space to the Congress. Telangana is likely to be the second stop for the saffron brigade in the South.

Ajay Gudavarthy is an associate professor at the Centre for Political Studies, JNU.

What Happens When Those in Power Usurp Constitutional Values?

The politics of nationalism is being used either to conduct crimes or to defend criminals.

The former director general of the Border Security Force and former director general of police of Uttar Pradesh and Assam, Prakash Singh, has argued in a recent Indian Express article that describing the Kathua and Unnao rape incidents as the “darkest hour” since independence – as claimed by 49 prominent retired bureaucrats, including N.C. Saxena, E.A.S. Sarma, Harsh Mander, Wajahat Habibullah and Aruna Roy in a protest letter written to the prime minister – is an overstatement.

Singh has suggested that rather than playing into the hands of forces that are out to tarnish the image of India, the distinguished civil servants should have asked for systemic changes in the criminal justice system.

Though he calls Kathua and Unnao “barbaric”, his article essentially seeks to play down the two incidents.

This is unfortunate because these were not simply “two incidents of rape”, as he puts it, but crimes in which the government sided with the accused. Of course, even that is not something new. In a number of incidents, the parties in power have, for their vested interests, sided with the culprits. But what is most appalling about the Kathua incident is that in a rally in support of special police officer Deepak Khajuria – one of the accused in rape and murder of an eight-year-old nomad girl – the tricolour was used by members of a right-wing Hindu group and Bharatiya Janata Party (BJP) office bearers who participated in it. Such things have not occurred in the country before.

The Hindu Ekta Manch protest in favour of the accused in the Kathua rape case. Credit: Twitter/Files

The Hindu Ekta Manch protest in favour of the accused in the Kathua rape case. Credit: Twitter/Files

The politics of nationalism is being used either to conduct crimes or to defend criminals. Consider the kind of incidents which have started taking place with the rise of the BJP.

Timeline of events

Narendra Dabholkar was shot dead on August 20, 2013, Govind Pansare was fatally attacked on February 16, 2015, professor M.M. Kalburgi was shot dead on August 30, 2015 in Dharwad, Karnataka and Gauri Lankesh too was shot dead point-blank on September 5, 2017 in Bangalore for holding views critical of the right-wing.

On September 28, 2015 a mob lynched to death Mohammad Akhlaq near Dadri over rumours of cow slaughtering and beef consumption.

On March 18, 2016, a group of ‘gau rakshaks‘ lynched 32-year-old Mazloom Ansari and 12-year-old Imtiaz Ansari in the Latehar district of Jharkhand and hung them from a tree when they were ferrying eight oxen to a cattle fare. Now that the guilty have been convicted, BJP leaders are agitating for a CBI investigation.

On July 11, 2016, four Dalit youth were accused of cow slaughter and beaten in public by gau rakshaks in Una, Gujarat – an incident which created national uproar.

On April 1, 2017, Pehlu Khan was returning from Jaipur after purchasing cows and calves and heading back to his village Nuh in Haryana when he was stopped by a cow vigilante group and lynched to death, despite the fact that he possessed all the proper documents from the Jaipur Municipal Corporation to show that the cattle was meant for dairy. Sadhvi Kamal had equated one of the accused in the case with revolutionaries Bhagat Singh and Chandra Shekhar Azad.

On April 20, 2017, BJP MP Raghav Lakhanpal Sharma from Saharanpur, UP, attempted to forcibly take out a procession to mark the birth anniversary of B.R. Ambedkar through Muslim-dominated Sadak Dhudhli village. Ambedkar’s birth anniversary is April 14, so why were the plans for a rally announced on April 20, and why the insistence on taking out the rally through a Muslim locality? When the police stopped the procession, a mob incited by the MP attacked the residence of senior superintendent of police. Two FIRs were registered against him that day.

Representative image. Still from 2014 Saharanpur riots. Credit: PTI

On May 5, 2017, members of the Thakur community took out a Maharana Pratap Jayanti procession through a Dalit settlement in the Shabbirpur village of Saharanpur. There were clashes at the Sant Ravidas temple in which a youth, Sumit Singh, died due to asphyxiation after he tried to burn the idol of Ravi Das. Thakurs, in turn, burnt down about 55 Dalit houses.

Following communal violence in Uttar Pradesh’s Kasganj on Republic Day in 2018 – which had led to the death of one person – district magistrate of Bareilly, Raghvendra Vikram Singh, had in a Facebook post condemned the ‘trend’ of Hindutva groups forcibly entering Muslim-dominated areas, raising anti-Pakistan slogans and creating a ruckus. He was subsequently criticised for expressing his views.

Twenty-four-year-old Akhila Ashokan converted to Islam, adopted the name Hadiya and married Shafin Jahan. In May 2017, the Kerala high court annulled the marriage and the National Investigation Agency (NIA) subsequently claimed that she was a victim of indoctrination and psychological kidnapping. In March 2018, the Supreme Court restored her marriage. The NIA has been supposedly established to combat terror in India.

Why Prakash Singh’s views matter

It is such incidents that have vitiated the atmosphere of a country in which Dalits, Muslims and the dissidents of right-wing ideology have been the main target, and which has jeopardised the constitutional values against which the former bureaucrats have expressed concern. The BJP government, by not taking action against lawbreakers, has sent out a message that such incidents promote its political agenda of polarisation, and hence bring in votes.

Prakash Singh should have stood up against this usurpation of our constitutional values and should have added his name to the former bureaucrats who have spoken out, rather than appearing to take the side of forces which he himself believes to be divisive.

He calls the Babri Masjid a dilapidated mosque and regrets that there was no protest over the damage to 208 temples in Jammu and Kashmir. The first serial bomb blast incident in Mumbai took place in reaction to the Babri Masjid demolition. Even though it might have been a dilapidated structure, it was a trigger for a series of terrorist incidents in India.

It is a pity that a person of his standing has made such a comparison. It is because of people like him, who hold responsible positions in the government, that the incidents described above take place and the culprits are not restrained. We hope that he will review his position.

Sandeep Pandey is a Magsaysay Award-winning activist and scholar who co-founded Asha for Education.

A ‘Probe’ Into Some Probes Ordered by the Supreme Court

In some legal matters, much like in the Loya case, there were no conclusive findings of fact and the Supreme Court had to merely take a prima facie view.

The case of the death of Judge Loya judgment has employed its own, unique basis, in arriving at the conclusion that no probe was required into the matter. There were so many factors that were perplexing and grave about the case that have already been considered previously. Briefly, the ones that were most egregious were the fact that there was enough material on record to suggest that the post mortem report was questionable and that there may have been a head injury given that even the Meditrina Hospital bills accounted for neurosurgery, non-invasive lab and diet consultation – matters which have nothing to do with a cardiac arrest but which the court side-steps by saying we are not dealing with a case of medical negligence of the hospital (it was no one’s case that the argument was regarding medical negligence.

The argument was that you do not require neurosurgery in cases of cardiac arrest and if there are bills for such a procedure, they must be investigated. In fact the “medical negligence” argument suggests that the court assumes that the medical bill likely records incorrect fact which could be the subject-matter of a separate medical negligence case but that was not even why these entries were brought before the SC. The Maharashtra government constituted an unusual “discreet inquiry”. Even the sequence of events in the main Sohrabuddin matter that played themselves out – that of Judge Utpal being transferred, Judge Loya being replaced and dying, Judge Gosavi being appointed and the immediate discharge, CBI not appealing – do raise doubts sufficient to seek inquiry.

In the context of the above – serious issues that were presented before the SC – why did the SC still deem it fit to dismiss the petition to the extent of suggesting that it was a motivated petition in the nature of criminal contempt? To apply context and precedent to see if a pattern emerges when examining the threshold the SC has applied to its own previous cases to order an investigation or form an SIT, I looked at a few cases it has decided in the last three years. While I cannot say that a clear standard has emerged, what is common is that the SC has ordered probes in some serious cases where it seemed imminent whilst also ordering investigations in cases that seemed less suitable for such purpose. Even in cases where it has refused to form SITs, it has done so on the basis that the nature of the case does not merit one rather than weighing on extraneous factors such as motive of the petitioners or even relying heavily on any one version of the submissions which remained completely untested at the bar (such as the “say”, not affidavit of four judges who were not even cross examined).  One thing that seemed apparent though, is that the SC has been permissive in ordering investigations where a shadow of doubt emerged and in none of the cases I looked at, has the court drawn factual conclusions (which it is not permitted to do within the confines of its Article 32 jurisdiction).

SIT probes ordered or refused previously by the SC

In the matter of the SIT formed for inquiry into the 1984 anti-Sikh riot cases, out of the 293 cases the SIT was inquiring into, it closed 199 cases after scrutiny. Out of 59 cases which were taken up for further investigation, a further 42 were closed after investigation.

 Ordering a SIT, a supervisory body and then yet another SIT

The papers of the 199 closed cases were ordered to be produced before the SC in a sealed cover. On the basis of a suggestion that a supervisory body should be constituted to scrutinise and re-examine whether the 199 cases closed by the SIT were validly closed or otherwise, the SC ordered the constitution of a two member supervisory committee consisting of two retired SC judges to once again examine the 199 closed cases that had already been scrutinised once by the SIT to determine whether there was a “justification” in closing those cases. The court requested the Supervisory body to file its report within three months and for members of the body to be given financial benefits as permissible as well as the Union’s requisite assistance. In fact, on request the SC also asked the supervisory body to conduct investigation into 42 other closed cases in the anti-Sikh riots case to identify if there was justification for closure by the SIT. The supervisory board found that 186 cases had not been investigated and so the SC thereafter ordered the constitution of yet another new SIT to investigate these cases consisting of a former high court judge, a retired IPS officer and a serving officer of IPS status.

Ordering the NIA to investigate with a retired Judge  overseeing or a SIT

The SC has, in fact, been robust or even overzealous in some cases in ordering probes and investigations. As I have previously pointed out, the SC in the astonishing Hadiya case (where a Special Leave Petition (SLP) was moved against the order of the Kerala high court annulling a marriage in a habeas corpus writ filed by Hadiya’s father) not only deemed it fit to appoint the National Investigation Agency but also to appoint a retired SC judge at the expense of the central government to oversee the investigation. In the piece, I have also pointed out another case where the SC had ordered the setting up of an SIT in relation to a complaint filed on allegations of wife-swapping, criminal intimidation etc. I would argue that both these cases did not contain allegations as serious and factors as compelling as that in the Loya case. In none of these cases has the court (rightly) gone into a detailed examination of facts or formed any conclusions thereto.

Ordering an SIT in a 17-year-old FIR

In Sunita Devi v. Union of India, an Article 32 writ was filed before the SC seeking an investigation/constitution of an SIT to investigate into a 17-year-old murder case where an FIR had been registered in 2001. However, the trial court while acquitting the accused had observed that the investigation carried out in the case was not conducted properly and a writ seeking a CBI investigation was also later withdrawn on the request of the petitioners. The petitioners approached the SC in 2018 stating that they had sought a withdrawal of the CBI investigation since they were receiving constant threats and, as the SC’s order of February 8, 2018 records, the petitioners argue that they “have sufficient evidence to show that CBI did not investigate the case deliberately, being hand in glove with the accused persons. There are indications of huge money being bribed to top officers to close the matter.” On this basis, the SC ordered an independent SIT to be constituted to reopen and investigate the FIR of 2001 and for the government of Uttar Pradesh to assist with logistical support and expenses.

Cases where the SC has refused investigation

Even in cases I looked at where the SC has refused a SIT probe, it has done so for reasons such as an already available remedy or that the matter was already being sufficiently investigated, leaving issues of merits open. That is not the conclusion in the Loya case. These, decisions are equally, if not more important to scrutinise than the ones where a probe was allowed.

Take the example of the PIL seeking a probe into the Panama Papers leak. The SC in that matter found that the government had already constituted a Multi-Agency Group and that a SIT existed for other investigations and that therefore held in its order that another SIT was not necessary. The court did not deem it fit to examine and pronounce judgment on the nature of the allegations leveled for which the probe was sought.

Another example could be the recent decision of the SC in a PIL where a SIT was sought to probe allegations of fuel adulteration. The SC whilst dismissing the PIL found that there were existing statutory remedies against such malpractices which could be exercised and crucially observed that it was not making any findings of facts in the matter leaving the issue open on merits.

The Right to know the truth

Perhaps the case that perfectly describes the role of the SC, when ordering a probe on the basis of a PIL into troubling matters is the July, 2016 decision in EEVFAM & Anr. v. Union of India & Anr. – it is, quite simply, as the SC itself puts it – the right to know the truth. In this case, the petitioners sought a probe into the alleged extra judicial killings in Manipur by police and the armed forces. The petitioners had compiled information regarding 1528 extrajudicial killings and for the purposes of the PIL, demonstrated available information in 10 cases where FIRs had not been registered, and the petitioners argued that the victims were innocent individuals with no criminal records. The State’s defence was that measures were required to be taken for security reasons. The SC, on considering the affidavits on record in detail first gave several directions to state agencies, the NHRC etc. for segregating the matters before a detailed inquiry being ordered. The Centre then filed a curative petition against this decision in 2017 which was dismissed. Subsequently the SC appointed an SIT and was careful not to introduce any member of the Manipur police in it given there were allegations against the police itself. In subsequent orders the SC has been monitoring the developments of the SIT investigations (with the involvement of the NHRC and the CFSL) and providing its guidance and assistance at various junctures. This case is a great example of how effective and meaningful a court monitored SIT can be (although it can never be said with any degree of certainty what the ultimate outcome of the investigation might be).

Conclusions from these cases

In each of these cases, it is evident that allegations are leveled against enforcement or investigations agencies, various arms of the State and the SC has then constituted the SIT such that it does not contain members of such agency. Why then is the Loya case different where the petitioners though that there was enough material on record to test the version of the four judges? Surely an SIT could have been constituted to not only test their statements but also to investigate into other disturbing matters in the case. In each of these cases, the SC has appreciated the material on record and left it to the appropriate investigating body to do its job of fact finding to determine whether a trial or any appropriate further steps would be required. As the examples I have given here show, the SC has used wide latitude in ordering investigations, not hesitating in doing so even in cases that are two decades old, not hesitating in constituting a supervisory body to sit in review of a SIT’s investigation, not even hesitating in ordering a new SIT if the old SIT did not seem to have done a thorough job! In these cases, much like in the Loya case, there were no conclusive findings of fact and the SC had to merely take a prima facie view. It is not for the SC to make conclusive, fact determinations while deciding whether a matter ought to be investigated. Even assuming the facts traversed in the PIL are false, it is not for the SC to decide whether they are so, that was not the mandate of the court’s jurisdiction nor was it the issue before the SC. To the extent that the SC has made such findings, it is submitted that such findings would have been made without jurisdiction.

The justification of protecting hallowed institutions is rendered hollow if those very institutions fail to inspire confidence. As the SC itself has taught us in the past, no institution is more important than finding out the truth.

Shalaka Patil is a lawyer practising in Mumbai. She tweets @shalakapatil1.

 

Court Can’t Decide Marriage Is Invalid, Hadiya Can Choose Independently, Says SC Judge

Controversial case pits advocates of the autonomy of an adult woman to decide whom she marries against conspiracy theorists who see Hadiya’s marriage as part of a supposed Muslim plot to seduce and convert Hindu women.

Controversial case pits advocates of the autonomy of an adult woman to decide whom she marries against conspiracy theorists who see Hadiya’s marriage as part of a supposed Muslim plot to seduce and convert Hindu women.

Supreme Court of India. Credit: Reuters

Supreme Court of India. Credit: Reuters

New Delhi: The Supreme Court today observed that the National Investigative Agency cannot take a call on whether the marriage of the 24-year-old Hadiya with Shafin Jahan is legitimate. “If she (Hadiya) has no issues (with the marriage), that’s the end of the issue,” LiveLaw quoted Justice D.Y. Chandrachud as saying.

His remark came during hearings on the controversial case which pits advocates of the autonomy of an adult woman to decide whom she marries against conspiracy theorists who see Hadiya’s marriage as part of a supposed Muslim plot to seduce and convert Hindu women.

“How can we say marriage is not valid when she says she married…she can choose independently. She is 24 years old,” Bar and Bench quoted the bench comprising Chief Justice Dipak Misra and Justices A. M. Khanwilkar and Chandrachud as saying. “Marriage has to be separate from criminal activity, otherwise we will be creating a bad precedent in law.”

The marriage between Hadiya and Jahan was annulled by the Kerala high court, a move that was criticised widely by women’s rights activists and others for infringing on a woman’s personal rights and saying that she does not have the agency to choose her own partner. The high court had also ordered Hadiya to remain in the custody of her parents. Jahan had appealed this decision in the Supreme Court.

Also read: Hadiya’s Encounter With the Courts Reveals the Continued Stranglehold of Brahmanical Order

The lawyer representing Hadiya’s father, who had insisted from the beginning that the marriage is a case of ‘love jihad‘ even though Hadiya converted to Islam before she met Jahan, said that the circumstances leading to the marriage needed to be investigated. To this, the court said that the couple’s marital status was not a matter for investigation. The NIA can continue with its probe but it cannot investigate into the marital status of the man and the woman, PTI quoted the court as saying.

Shafin Jahan and Hadiya. Credit: Facebook/Hadiya

Shafin Jahan and Hadiya. Credit: Facebook/Hadiya

The NIA told the court that it has made “substantial progress” in its probe into ‘love jihad’ in Kerala, PTI reported.

The Supreme Court also said today that it is not within the courts’ jurisdiction to decide whether or not a grown woman should live with her parents. “When the girl says I don’t want to go with father, how can the court compel her? She is an adult, she appeared and made a statement,” LiveLaw quoted the bench as saying.

Also read: SC Should Defend Women’s Privacy, Autonomy, Not Perpetuate ‘Love Jihad’ Myth

The court also accepted lawyer Kapil Sibal’s request to make Hadiya a party to the proceedings, and said that the matter will next be heard on Fenruary 22.

In November 2017, the Supreme Court had ‘allowed’ Hadiya to go back to college and finish her course in homeopathic studies. The bench directed the college and the university to re-admit Hadiya and grant her hostel facilities.

During the course of the hearing then, Hadiya had said that she wanted to live with her husband and that she had married Jahan of her own free will. She was produced in the court after the bench had ordered her father to bring her, so that they could ascertain her mental health.

In 2017, India’s Top Judiciary Reached New Heights – and New Lows

Looking back at significant verdicts of the Supreme Court that are likely to have long-lasting impacts.

Looking back at significant verdicts of the Supreme Court that are likely to have long-lasting impacts.

Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

As we bid farewell to 2017, The Wire looks back at some of the markers of disruption that affected different spheres, from politics and economics to technology and films.

In many ways, 2017 was a remarkable year for the Supreme Court, with important and often unpredictable verdicts. The turn of the year is perhaps a good time to look at some of the significant decisions that the apex court made and, probably more importantly, to look at what it failed to do.

Justice K.S. Puttaswamy vs Union of India – the fundamental right to privacy

On August 24, a nine-judge bench of the Supreme Court unanimously affirmed that the right to privacy is a fundamental right under the constitution. The decision came at the end of a two-year-long battle, which had begun when the Union of India in a 2015 hearing (on the validity of the Aadhaar Act) argued that the right to privacy was not guaranteed under the constitution.

Through six different opinions, across 547 pages, the bench not only upheld the right to privacy, but also delivered a judgment which will significantly impact our republic for decades to come. Data protection, the legality of beef/alcohol bans, LGBT+ rights etc. are issues that will be directly protected by the privacy umbrella. Suffice it to say that this is not only the most significant decision of the year, but perhaps also one of the most important civil rights judgments ever delivered by the apex court. On a side note, the judgment had Justice D.Y. Chandrachud overturning his father Justice Y.V. Chandrachud’s surrender of civil liberties during the Emergency in the ADM Jabalpur case.

Also read: For the Many and the Few: What a Fundamental Right to Privacy Means for India

Shayara Bano vs Union of India and Ors 

The ‘setting aside’ of the practice of talaq-e-bidat – instantaneous triple talaq – on August 22 was another socially and politically significant judgment by India’s Supreme Court. The bench was split 3-2 on the question of validity of the practice. Justices Rohinton F. Nariman and Uday U. Lalit found it to be unconstitutional, while Justice Kurian Joseph found it illegal. Chief Justice J.S. Khehar and Justice Abdul Nazeer backed the practice. However, Justice Nariman (with Justice Lalit concurring) and Justice Joseph used different, even conflicting, reasoning to arrive at the “majority decision”. Justice Nariman set aside triple talaq on the ground that it was ‘manifestly arbitrary’. Justice Joseph set aside the practice holding that it was against the teachings of Quran.

Also read: Why Criminalising Triple Talaq is Unnecessary Overkill

It is hard to disagree with the final outcome. However, it is equally difficult to not see the decision as a missed opportunity. Long-standing constitutional precedent is still that personal laws are not subject to fundamental rights. Refusal to test personal laws on the touchstone of fundamental rights meant that the validity of religious laws continues to be decided on a judge’s interpretation of religious texts. Further, it leads to an anomalous situation where a personal law, when codified, is amenable to a fundamental rights infringement challenge. However, the same law in an uncodified form is immune to constitutional scrutiny.

The triple talaq case presented the perfect opportunity to re-examine this position. Justice Nariman’s opinion does indicate that this may be done in a suitable case. However, the court stopped short of examining personal law on the basis of the constitution.

The apex court set aside instantaneous triple talaq this year. Credit: Reuters/Files

The apex court set aside instantaneous triple talaq this year. Credit: Reuters/Files

Independent Thought vs Union of India

The petitioners had challenged the constitutionality of Exception 2 to Section 375 of the IPC. The exception provides that sexual intercourse with a minor wife – one who is of or above the age of 15 – would not qualify as rape. As a result of the exception, there existed a category of married women between the ages of 15-18 who could not enjoy protection under the law if they were forced into sexual intercourse by their husbands. This position was supported by the Union of India. Through its judgment passed on the October 11, the court held that the distinction made between a married girl child and an unmarried girl child was arbitrary and whimsical. In effect, the court has criminalised all sexual intercourse between a man and a minor girl, irrespective of their marital status.

Also read: Marital Rape and Child Marriage: Two Sides Of The Same Coin

Hadiya

A marriage between two consenting adults would ordinarily be their business and theirs alone. It is unlikely to give rise to any legal contests, much less fights that lead to protracted and often, stormy hearings at the Supreme Court spread across several months.

The marriage of 24-year-old Hadiya (formerly Akhila Ashokan) to 27-year-old Shafin Jahan is at the centre of a political and legal storm that has taken one unexpected turn after another. It started with a May 2017 judgment of the Kerala high court, which while deciding on a writ petition filed by Ashokan’s father, annulled Hadiya’s marriage to Jahan. The question before the Supreme Court was simple – on what basis did the high court use its extraordinary writ jurisdiction to annul a marriage between two consenting adults?

However, instead of deciding the issue, the court allowed itself to be misled by the bogey of sinister conspiracies. The end-result – an adult woman was unwillingly kept in the custody of her father for months, while the National Investigations Agency went on a roving and fishing expedition to prove the love jihad theory.

Over the last two hearings, the court seems to have gotten past the red herrings that were laid in its path. On November 27, Hadiya was directed to go back to homeopathy college in Salem, Tamil Nadu. However, even this order was passed against her express wishes. The case is slated to be listed for hearing once again early next year. One only hopes that Hadiya’s ordeals end then and she is given the rights guaranteed to her under the constitution – liberty and freedom of choice.

Also read: Hadiya’s Encounter With the Courts Reveals the Continued Stranglehold of Brahmanical Order

National anthem orders

In 2001, Shyam Narayan Chouksey went to a theatre in Bhopal to watch Karan Johar’s Kabhi Khushi Kabhi Gham. The movie included a scene where the national anthem was played, so he stood up, but no one followed suit. Instead, people heckled him for obstructing the view. Thus began his long quest to ensure that fellow citizens stood up whenever they heard the national anthem being played. Through an interim order dated November 30, 2016, passed in Shyam Narayan Chouksey vs Union of India and Ors the Supreme Court directed cinema halls to play the national anthem before the screening of a film. It also directed that all present would be “obliged to stand up to show respect to the National Anthem.” The interim order is a case of judicial legislation. It also seeks to establish a forced display of patriotism, which display  the Supreme Court had in the 1980s ringingly denounced in Bijoe Emanuel’s case.

Through the course of 2017, attempts have been made to persuade the court to reconsider its directive. On October 23, 2017, the court showed a willingness to recall the order. Justice Chandrachud even questioned whether the court could direct ‘a citizen to wear patriotism on his sleeves?’ Ultimately, the court directed the government to take a decision on the issue. The case is listed for hearing on January 9, 2018. The interim order of 2017, however, remains in place.

None of the sections of the Prevention of Insults to National Honour Act, 1971 makes it mandatory for a citizen to stand up when the national anthem is played. Credit: Jean-Etienne Minh-Duy Poirrier/Flickr (CC BY-SA 2.0)

The CJAR/Kamini Jaiswal petitions

The events of November 10, 2017, were unprecedented in the annals of the Supreme Court. It all started in September, when the CBI arrested former high court judge Justice I.M. Quddusi. The FIR filed in case by the CBI it alleged that promoters of a medical college in Kanpur had approached Quddusi who had promised relief from courts in return of bribes to influential people.

Cases concerning medical colleges had earlier been heard by a bench headed by the Chief Justice of India (CJI) Dipak Misra. The Campaign for Judicial Accountability and Reforms and subsequently Kamini Jaiswal, filed petitions. Both contended that since the FIR by CBI cast aspersions on the judiciary, the matter should be investigated by a Special Investigation Team headed by a retired Chief Justice of the Supreme Court.

The first petition had been directed by the CJI to be placed before a bench sitting in the sixth court. However, the second petition was mentioned before the bench of the second senior-most judge, who later that day referred the matter to five of the senior-most judges of the court. This order was perceived by some as a direct attack on the Chief Justice and his powers. The chief justice thereupon constituted a constitution bench of five judges, who overruled the previous order by the second senior-most judge. The petitions were ultimately dismissed with exemplary costs of Rs 25 lakh. The sight of a squabbling top judiciary, with a miasma of corruption allegations being buried out of sight, is a grave, self-inflicted wound that continues to fester within the the institution. The last chapter in this tale has not yet been written, and 2018 may yet see an unexpected denouement.

Also read: A Sad Moment in India’s Judicial History

What 2018 holds

In many ways, the judgments delivered by the Supreme Court in 2017 have paved the way for the court room battles of 2018. The first significant case that the court will hear is the challenge to the validity of the Aadhaar scheme, which will now be tested against the fundamental right to privacy. Final hearings of the case are scheduled to begin on January 17.

January 2018 will also see further proceedings in the national anthem and Hadiya cases. The final hearing of the Babri Masjid dispute is also slated to begin in February 2018. The year 2018 will hopefully see a Supreme Court which builds on the strengths it gained in 2017.

Sanjay Hegde is a senior advocate, Supreme Court. Pranjal Kishore is an independent lawyer, he tweets @parahoot.