The red in the sea of black and white..
While three judges of the Supreme Court, Chief Justice of India, Mr. Dipak Misra, Justice D.Y. Chandrachud, and Justice A.M. Khanwilkar sat motionless on 27th November, 2017, a young women dressed in red, with a red Hijab approached them followed by a stern of women police officers in uniform. All heads turned around at approximately 2:55 PM to see the young woman. Lawyers in black and white were on their heels, pushing each other, making space, for her entry, and trying to get a glimpse of this girl who had held up national attention, the Supreme Court, and the media by simply converting to a different religion, and marrying the person of her choice.
It was Hadiya, a 25 year old woman from Kerala, who had been ordered by the Kerala High Court to be remanded in the custody of her parents as the court agreed with her father’s plea, and held that,
“Parents are in all circumstances, not bound to concede absolute decisional autonomy to their children, even if they have attained majority.”
From the Kerala High Court, this case had come to the Apex Court of the country on an appeal by her husband, a free man, for her release, where he mentioned that since she was in custody, she could not file a petition on her own behalf. Earlier, a plea made by his lawyers, Kapil Sibal, me, and Haris Beeran, that she be produced in the Supreme Court to interact directly with the judges of the Supreme Court was turned down and instead, an order was passed directing the National Investigation Agency (NIA) to investigate into an alleged pattern of conversions by an organized racket to convert Hindu women to Islam. Shocking as the order was, it directed retired Judge Ravindran to supervise the fairness of the investigation. Justice Ravindran declined to do the honours for personal reasons but the NIA went ahead anyway with its investigations, and its findings were kept in a sealed cover. It was only after Justice Kehar, the then Chief Justice of India retired and the present Chief Justice Dipak Misra came in, that an order was passed on our insistence that Hadiya be heard by the Court as it was her wishes that we were all talking about.
On the very first day of the hearing before him, The Chief Justice of India is reported to have said “there is no law in the country which prevents a woman form marring a criminal if she so choses”. There the case should have ended and she should have been ordered to be set free. However the court continued the custody of her father and ordered her to be brought to the court on the 27th of November . In compliance with the order, on 27th November, 2017 at 3:00 pm, she was “produced” by her father in police custody. She had been staying at Kerela House under police protection, with no one allowed access to her, not even her husband or his lawyers.
Sitting in the first row, I could barely see her from the edge of my eyes, respect for her privacy prevented me from turning around as all others did and glare at her. This is the young girl I wanted to meet ever since I started appearing in the case. I caught a glimpse of her, smiling at the women police officers who were with her. They too seemed to respect her, and her privacy and I noticed she had an easy relationship with them, human in her communications with them. The woman police reciprocated with equal respect for her, as if saying this is just our job but we understand what is going on. I marvelled at her cool relationship with the police. In captivity she seemed free. Neither the court room with its intimidating interior grand wooden structure, nor the sea of lawyers, nor the three learned men sitting in judgment over her could disarm her composure and calm.
The proceedings began, and surprisingly the eminent judges spent close to two hours discussing if they should even speak to Hadiya. There she was this young girl who could understand every insult being hurled upon her, in English a language she understood but did not speak, patiently standing and waiting for her turn to tell her story.
Senior Advocate Mr. Shyam Divan, representing Hadiya’s father insisted that she had been “programmed, presumably by the Jihadis and her husband and that she needed “professional de-programming”. When confronted with the fact that she was an adult woman and could not be kept in the custody of her parents, his answer was that it was the duty of the court to see that there was an organized crime taking place to lure Hindu women to marry Muslim men and recruit them for terrorist activities. Never mind that she was a major, never mind that she was free to marry anyone of her choice, never mind that she was accused of no crime. And Mr. Maninder Singh, representing the National Investigation Agency insisted that the investigation records should be looked into, and considered, prior to talking to her.
Mr. Kapil Sibal and I insisted that Hadiya’s voice be heard in court. She was a woman with a mind of her own and must be allowed to speak for herself, that was the purpose of summoning her to court.
The detailed account of the deliberations that ensued in the courtroom for the next two hours, is enraging and heartbreaking at the same time. Mr. Shyam Divan argued that Hadiya was “indoctrinated,” she was programmed, and the NIA has uncovered evidence that shows that similar cases as Hadiya’s have come up in Kerala, and that her husband had connections with ISIS. Mr. Maninder Singh argued that Hadiya should not be spoken to unless the evidence and records collected by NIA are studied as a well oiled organization was working in Kerala which supported terrorist causes and this was an issue of national security. Over and over again the word “brainwashed” was repeated, in what seemed to me in an attempt to “brainwash” the judges and the audience in court into believing that she was not mentally competent to understand her own decisions.
There she was this 25 year old woman, she stood, merely a few feet behind those accusing her of mental incapacity, being told that she was a threat to national security. She stood there, calm, and composed, the red in the sea of black and white. She does understand English, to some extent, even if she can’t speak it fluently. Was this assault on her mental competence not highly defamatory? She waited for her turn to speak.
While the three learned judges were sitting comfortably, and so were the lawyers, she was made to stand for close to two hours, waiting for her turn to speak. It did not occur to anyone to offer her a chair, after all, she was not an accused in a court of law. I have seen other judges offer a chair to other litigants or officers who appear before them, but not to this young woman.
The conversation in the court, confined to lawyers and judges was only about legal niceties relating to “indoctrination”, how does one decide if a person is indoctrinated, what are the consequences of indoctrination, when do judges decide to talk or not to talk to a person alleged to be indoctrinated? Should they talk to her before or after seeing the NIA papers ? Was her marriage void as was held by the Kerala High Court, was her conversion coerced? I thought to myself, does it matter whether they talk to her before or after a lengthy legal discourse of “indoctrination", the least they have to do anyway is to talk to her to come to a conclusion either way.
It was at this point that Mr. Sibal, took a decision to call out the judges and point out that today, here and now, the issue before the court was Hadiya’s liberty, that she needed to be set at liberty here and now. We argued that the that parens patriae jurisdiction that the court was seeking to exercise over her was available to them only for minors and lunatics, and Hadiya was neither. It was then, that a I saw a turning point in the minds of all three judges, they instantly stopped talking about forced conversion, and marriage. The battle for her liberty was won at that moment.
It is this that her father’s lawyers feared, Hadiya’s truth, Hadiya’s voice.
Her crystal clear voice rang through the court room, “I want my freedom.” Did the court have any choice at that point? No. when asked if she wanted to continue her education , she said “I want my faith and my education". Then when it was clear that she would be sent to the college hostel she said, “I want to be able to talk to my husband when I need to discuss anything, I want his companionship”
At one point Justice Chandruchd asked her who was she closest to as a child and she said “my father". I was touched by her honesty. She made no attempt to malign her father or blame him for her problems. The judge was disarmed. There was no argument left that she was hostile to her family.
Mr. Shyam Diwan still persisted, a person can be detained at a “pre-crime stage” he said. The ink was barely dry on the privacy judgment holding the autonomy in decision making as a fundamental right, could the judge who authored that judgment agree with this proposition? The answer is obviously not, and yet for something so obvious, it took the court a good two hours to listen to her voice.
The gendered nature of the issue escaped the judges for those two hours. When I mentioned that if she was not a woman, we would have not witnessed this debate in court, the Judges promptly proclaimed that this was not about gender. My angry remark, “Is it okay to keep a woman waiting for an hour and a half when she has come here at the orders of your Lordships, it is about the agency of a woman. If it was a man, he would have been given the opportunity to speak by now.” What transpired next, shocked even a seasoned old feminist lawyer accustomed to hearing assaults against women in court day in and day out. The courtroom burst out laughing until I said “This is not a laughing matter.” The Chief Justice, agreed it was not a laughing matter bringing, the laughter to a sudden halt but in anger he insisted that this was not a gender justice issue, “it is very unfair on your part, Ms. Jaising”, he said. Justice Chandrachud said, “Ms. Jaising, man or woman, the personal autonomy would be treated at par.” Really my Lords?
The judges said that they had heard so many habeas corpus petitions before that for them this was nothing new. But I ask the judges, was any one of those hundreds of petitions by parents asking for custody of their sons? No, only of daughters, daughters who are not allowed to marry without the consent of the parents, much less convert from Hindu to Muslim.
Towards the end of the hearing, the Judges turned to Counsel for the State of Kerala and asked what he had to say about the NIA repot and whether the Court should look at the NIA report . At that stage Mr. V V Giri representing the State did an about turn and contrary to the findings of the Kerala police that there were no criminal proceedings against Hadiya or her husband , said that in his opinion, the view of the NIA should be taken into consideration while making the decision on her liberty. This for me was the most inexplicable aspect of the case, why would a left government delegitimize the findings of its own police force? Why did they not support the findings of their own police?
Close to two hours of discussions later, and the Court having sat for an hour over their scheduled time, the Court passed an order directing the college in Salem to admit her as a student for the completion of her studies.
Hadiya today is “free”, but freedom is in-dividable, you cannot be free to study but not free to convert, free to study but not free to marry, free to enter a hostel but not free to have the company and compassion of her husband. She has many more battles waiting to be won. This is indeed, notwithstanding what the judges may say or think, a battle for gender justice, the battle for agency which women have been fighting for centuries. The larger battle for Hindutva and political control over the State of Kerala is being fought over a women’s body.'
Indira Jaising is a Senior Advocate, practising in the Supreme Court.