PEOPLES UNION FOR DEMOCRATIC RIGHTS
Press Release – 30th Oct 2017
‘Love-Jihad’, NIA, and Democratic Rights
As the Hadiya-Shefin matter comes up for hearing today,
PUDR urges the Apex court to take note of the serious violation of democratic
rights of the parties involved in this so-called case of ‘Love-Jihad’. PUDR
believes that the case is being used in order to provide legitimacy to the
supposed presence of ‘Love-Jihad’ or ‘terror marriages following conversion to
Islam’ in the country which is nothing more than a communal political agenda
being pushed in the name security of the nation. For the past few months the
courts of the country have been seized of the issue.
On October 19, 2017 a Division Bench of the Kerala
High Court ruled that every case of inter-religious marriage could not be
considered a case of ‘Love-Jihad,’ thereby upholding the right of Sruthi
Meledath and Anees Hameed, adults who had married consensually, to stay with
each other, and denying the parents of the woman their plea for her custody. This commitment of the court to the right
to freedom of adult citizens, men and women, is commendable.
However it is
necessary to recall a completely opposite judgment by the same court a few
months earlier, on May 24, 2017, when the court had nullified the marriage of
24 year old Hadiya to Shefin Jahan, a
Muslim man, and granted her father custody over her, despite her assertion in
court that her marriage was entirely consensual. The court had then stated that
“A girl aged 24 years is weak and vulnerable, capable of being
exploited in many ways” and added that “as
per Indian tradition, the custody of an unmarried daughter is with the parents,
until she is properly married.”
This peculiarly contradictory response of the court cannot be
explained by the subjectivity of different benches of the High Court alone but
is linked to the larger paranoia over terror nurtured by the state, and its use
to justify deprivation of rights. Hadiya, who had
been Hindu, and called Akhila, had converted to Islam much before she married
Shefin (on 19 December 2016). She had been
studying and staying away from home during this period, and her father had
filed two petitions in the High Court asking that she return to his house, thinking
that she was being forcibly converted. The court had on both occasions accepted
her statement that her actions were voluntary, and ruled in favour of her right
to freedom.
The drastic about turn in the court’s attitude came after Hadiya
got married to Shefin Jahan, and her father cited instances of couples missing
from Kerala, believed to have gone over to fight for the Islamic state,
alleging that Hadiya was in danger of the same fate. Despite her assurances to the
contrary, her avowal of her consent to her marriage, Shefin Jahan’s submission
of identity proofs and certificate of the legality of their marriage, the
Kerala Police’s investigation upon the Court’s direction into his background
and credentials that found nothing incriminating, the Kerala High Court unlawfully
ruled to annul their marriage, and sent Hadiya to her parents’ ‘protective’ custody.
Shefin Jahan’s background showed that he was a member of Popular
Front of India (PFI) and was handling social media accounts of Social
Democratic Party of India (SDPI), the political wing of the PFI and not involved
in any act of terrorism. Yet mere suspicion of terror seems to have been enough
for the court to resort to deeply regressive and patriarchal arguments to
justify denial of Hadiya’s fundamental right to freedom and her right to bodily
integrity and autonomy. The judgment thus fundamentally violated Shefin and
Hadiya’s right to marry each other by choice, and indicted Shefin without
evidence. In a complete denial of women’s right to equality, it upheld the
notion that women could lifelong be wards of their fathers and husbands
completely, overlooking the fact that at no point does the law require, or the
Constitution permit, parental consent for adult men and women entering into
marriage. Such an unwarranted use of 'parens patriae doctrine' by Kerala HC to
restrict liberty of an adult woman is condemnable.
Compounding this violation further, on August 16, 2017, the
Supreme Court, responding to Shefin Jahan’s appeal against the nullification of
their marriage, ordered the National Investigative Agency (NIA) to conduct
detailed investigations into the case, to examine whether it was a case of ‘Love-Jihad’.
Meanwhile, the Kerala Additional Chief Secretary, Home Department filed an
affidavit in the Apex court stating that nothing in the investigation conducted
by the Kerala police thus far had revealed the need for a NIA probe. The
Supreme Court has subsequently observed that the High Court has no authority to
annul the consensual inter-religious marriage of Jahan and Hadiya and agreed to
take a relook at the order for an NIA probe. The next hearing in the matter is
scheduled for October 30, 2017. Meanwhile the NIA is supposed to be probing 94
cases of ‘Love-Jihad’ in Kerala and has apparently found evidence to suggest
that Hadiya and Shefin’s marriage is an instance of one.
The bogey of ‘Love-Jihad’ as a mode adopted by ‘terrorist’ groups has
been raised from time to time by Hindu fundamentalist groups, and as the
so-called ‘Love-Jihad’ case of Shalu and Kaleem in UP in 2014 showed, they put
intense pressure on families of the persons involved and the state machinery to
establish ‘Love-Jihad’. In that case an adult Hindu woman eloped with an adult
Muslim man of her own accord. BJP supported Hindutva groups conspired with her
parents to coerce her into announcing herself as a victim of ‘Love-Jihad.’ On
escaping from her parents’ clutches, Shalu revealed that she was under great
pressure to concoct this story, and that she had voluntarily eloped with Kaleem.
Given the complicity of the state machinery with such
fundamentalist groups, the opacity and lack of accountability in the NIA’s
functioning (its manner of gathering evidence or methods of investigation,
nature and standard of proof that it adduces to establish facts), it could
easily arrive at the pre-given conclusion of the existence of such a campaign,
indicting some organisations in the process, with next to no conclusive
evidence. The deeply patriarchal assumption that underlies the idea of ‘Love-Jihad’
is that adult women can be easily lured, misled or forced into marrying Muslim
men, and thereafter becoming terrorists, that they do not know their own mind,
and are incapable of choosing their own partners, and making key decisions in
their life.
As Hadiya and Shefin await the Supreme Court’s hearing today on
their fundamental democratic rights to equality and freedom of which they have
been peculiarly deprived by law, Hadiya remains a detenue and she continues to
face violence and pressure from her family and Hindu Fundamentalist groups. The
fears being expressed by Hadiya about her safety in her own father’s custody reflects
the irony behind the apparent concerns about the alleged terror marriages for
similar women being sought to be raised. PUDR expresses grave apprehension about
the ease with which Hadiya and Shefin in particular and citizens in general can
be deprived of their basic democratic rights by unsubstantiated allegations of
terrorism and ‘Love-Jihad’ through the agency of the judiciary and the NIA.
Anushka Singh, Cijo Joy
Secretaries, PUDR
30th October 2017
