Justice has a protean face, capable of change, readily assuming different shapes, and endowed with highly variable features, writes Edgar Bodenheimer in his magnum opus, Jurisprudence, the Philosophy and Method of Law. However, variable the features of our perception of Justice maybe, at its core, it essentially has three values; Liberty, Equality, and Security. Striking a perfect balance between these three components is what ensures moral and legal order in our society. Any of the abovementioned elements cannot overpower the others as it thoroughly erodes and undermines the concept of Justice. However, the recent proceedings before the Supreme Court of India reflect the development of a form of Jurisprudence which prefers security over liberty while dispensing justice. The Supreme Court of India has ordered an investigation by the NIA into the case of two adults marrying each other, due to the allegedly suspicious circumstances which precipitated the marriage. The Supreme Court, by not staying the judgment of the High Court may have watered down the liberty of an individual to take decisions personal to her life. The order also may have affected the development of feminist jurisprudence in India. Briefly, the controversy which arose is as follows.
On 24th May 2017, the Kerala High Court rendered a judgment annulling the marriage of Hadiya (previously known as Akhila) and Shafin Jahan. Hadiya’s parents approached the Kerala High Court seeking issuance of a writ of Habeas Corpus for her production before the Court. The Petition was filed on an apprehension that Hadiya was allegedly coerced into adopting Islam as her religion and she was likely to be trafficked to Syria. It was further contended that it is a right of a parent to give away his daughter in marriage and to ensure that the person who marries her is a suitable person. The High Court while admitting the Petition, granted Hadiya’s custody to her parents and directed the police authorities to maintain surveillance over the family to ensure their continued safety. The necessity for this judicial intervention was justified on the ground of a threat posed to the security of society by an individual who is not mature enough to exercise her right to choose a new faith and get married. The threat to security was also allegedly posed by the individuals who ‘aided and abetted’ this choice of conversion and the fact that since Shafin Jahan had criminal antecedents. The High Court categorically observed that ‘we are not satisfied that it is safe to let Akhila free to decide what she wants in her life’.
The High Court while making observations about a 24-year-old woman not being mature enough to take decisions about her personal life, turned a blind eye to the fact that such a finding may amount to the serious infractions on gender equality and liberty of individuals. It thoroughly undermined her liberty to choose her faith, possibly her life partner or her desire to take decisions about her own life. Hadiya choosing to adopt Islam as her faith is a deeply personal choice. The mere fact of conversion to Islam in this case proved to be a fearmongering factor for her parents and society around her. It seemed as if it was more to do with the religion she converted to rather than the fact of conversion itself which may have provoked her parents to approach the High Court. Her parents had previously filed another Petition before Kerala High Court. The High Court in such previous petition had held that Hadiya was not illegally confined nor was she coerced into staying at an institution where she learnt about the teachings of Islam. Further, the High Court also observed that she could not be forced to reside with her parents. However, in the subsequent Petition the High Court granted custody on the premise that since Hadiya had married Shafin Jahan, the chances of her being taken out of the country were unusually high and the marriage was contracted in highly suspicious circumstances. Based on these facts, the High Court in its wisdom thought it appropriate to annul Hadiya and Shafin Jahan’s marriage. Annulling a marriage on an apprehension about the consent given by Hadiya is a severe transgression into her personal liberty.
An appeal was filed by Shafin Jahan against this order of the High Court annulling their marriage and granting custody of his now ex-wife to her parents. Counsel for Shafin Jahan urged the Court to summon Hadiya and let her present her views on the entire matter, to reasonably ascertain whether there was any weight in the contention of forcible conversion. The court directed the NIA (National Investigation Agency) to investigate the case. The Court further directed the parents to ensure the presence of the child (a 24-year-old woman) in court in case an interaction was required. Essentially, by not staying the High Court judgment, the marriage between two adults, as of today still stands annulled. The Court has expressed that it will hear Hadiya before deciding the case finally. However, hearing her before ordering an investigation by the NIA may have obviated such investigation itself.
We should not concern ourselves at this juncture with the final outcome of the proceedings and neither should we dwell on the manner of unfettered exercise of power by the High Court under Article 226. However, the refusal to stay the judgment of High Court is the highly disconcerting detail which needs debated.
It was essential to stay the order for the simple reason that the will and views of Hadiya on her marriage are yet unknown. The suspicious circumstance which led to the annulment, among other reasons, was her forced conversion. However, Hadiya had expressed before the High Court that she consciously adopted Islam, and therefore the High Court in the previous proceedings refused to interfere. Keeping the marriage annulled till the NIA submits its report and the Supreme Court decides the case finally, may amount to grave interference in private life of the individual and serious infractions on her liberty. The married parties at this interim stage, could have been prohibited from travelling abroad and kept under strict surveillance, rather than keeping the marriage annulled. Staying the judgment would have obviated the possibility of injustice which could be suffered by Shafin Jahan and Hadiya (by living apart), in case the court decides the dispute in favour of Shafin Jahan. It is obvious that the existence of terror threats or forcible conversions cannot be overlooked and neither can they be treated lightly. The circumstances in which the fact of marriage came before the High Court arose the High Court’s suspicion. However, such concerns of security cannot strangle Hadiya’s liberty unless these suspicious are based on concrete proofs and not fearmongering factors vehemently canvassed by her parents. Individual liberty needs to be the driving force behind doing justice (even at the interim stage). Development of jurisprudence where Security overpowers liberty, may be perceived as an anti – individual and pro – state jurisprudence. To give an example, a society/state may perceive freedom of thought as a threat to its security, but it is liberty that protects such possible infraction. Protection of individual liberty in the face of great adversity is true democracy. The greatest good of greatest numbers often comes at the cost of individual liberty and gives sufficient leeway to Majoritarianism. And, it can safely be stated that Majoritarianism and Democracy cannot peacefully co - exist. It is therefore necessary that the court develops a jurisprudence where the court prefers and protects liberty in a manner that does not undermine security. And such can be the case only when liberty is preferred and the relief is moulded around it.
The infractions on gender equality in the present case are also unsettling. A systematic deconstruction of women’s rights has occurred as the High Court has treated Hadiya to be a person incapable of exercising personal choice over her own life. Women in India have through the years fought for their own independence in their respective lives; independence from the stereotypes of being an inferior gender needing constant parenting, care, protection and surveillance. It has always been an uphill task to break even in a society dominated by men. Justice, in this case would have been to balance the fear of breach of security and the woman’s liberty and her right to be treated equally. The essential philosophy of the High Court judgment and the Supreme Court orders revolved around the fact that a serious threat to security of society and Hadiya herself was posed by her wrong choice. The Supreme Court of India in its previous decision in Arumugam Servai vs. State of Tamil Nadu while dealing with the atrocities perpetrated by Khap Panchayats observed that it is illegal to interfere in marital choices of individuals and such interferences have to be ruthlessly stamped out. In essence, the Supreme Court criticized an institution/ideology that supresses inter caste marriages and upheld the choice of the individual as such choice is a deeply personal act. With such jurisprudence in the recesses of the memory of Supreme Court, to not stay the operation of the High Court order annulling the marriage of two individuals, on the apprehension of threat to security, without hearing Hadiya, may have amounted to keeping a leash on liberty at the cost of security.
‘Security is a Janus-faced countenance’. Over emphasising Security may strangle liberty, and downplaying it may pose a threat to liberty. Striking a balance between these values is where Justice lies.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same].