The Transition From Shafin Jahan v. K. M. Ashokan’ to ‘Love Jihad’.


 On April 9, 2018, the Supreme Court (SC) delivered its reasoned judgment in Shafin Jahan v. Ashokan K. M., popularly known as the ‘Love Jihad’ Case. The court restored Hadiya’s marriage with Shafin, and launched a scathing attack on the Kerala High Court judgment which had annulled her marriage while hearing a Habeas Corpus petition by her father.

The 60-page judgment comes across as an exercise in exoneration through self-effacement and factual omission. However, platitudes on the autonomy of choice – of marriage or faith – cannot undo the violation of Hadiya’s fundamental rights throughout the proceedings at the SC.

The judgment selectively mentions certain dates, to give the impression that the SC restored Hadiya’s freedom and liberty on March 8 – International Women’s Day. It mentions that the matter reached SC on August 4, 2017, that Hadiya testified on November 27 expressing her free choice, and the decision was delivered on March 8 by striking down annulment of her marriage. It carefully avoids mentioning how the case became a ‘love Jihad’ case during the oral hearings.

Omissions in the Judgment

On August 4, 2017, the bench headed by Chief Justice J. S. Khehar, ordered an NIA (National Intelligence Agency) investigation into Jahan’s ‘antecedents’. An NIA investigation is a drastic measure in an otherwise simple case involving the annulment of a marriage. It is interesting to see that the same court rejected refused an inquiry into Justice Loya’s death.

On August 16, 2017, the Court ordered that the NIA investigation be carried out ‘under the guidance’ of Justice (Retired) R.V. Raveendran. However, Justice Raveendran turned down the request to supervise NIA probe. Yet, the NIA investigation continued in violation of the court order. This makes us question the sanctity of NIA investigation carried out without the supervision mandated by the SC.

Third, the court perpetuated injustice on Hadiya by keeping her in parental custody against her wishes till November 27, 2017. By not issuing an interim order for releasing her, it continued violating the liberty of an adult for more than 100 days. Even on November 27, the court had to be persuaded by counsels to hear Hadiya out. After two hours of deliberation, Hadiya took the stand and vociferously claimed that she wanted ‘freedom’. But, Hadiya was handed ‘partial freedom’ – she was sent to Salem to pursue her studies.

Further, she clarified that she wants her husband to be her guardian, while she continued her studies. Justice Chandrachud had responded that wives are not chattel that they would need a guardian. When she said that she is mentally harassed at home and wants to return to her husband, the court refused to delve into it. The core questions of autonomy of choice were discussed and answered 3 months after Hadiya’s testimony.

Unreasoned afflictions of the SC

Apart from Hadiya’s struggle for justice, this case portends judicial ills that must be called out. There are two dangerous trends which feed into each other. The first is the narrow prism through which the court looks at its ‘public reasoning’ function.

The Court’s authority as the final interpreter of the law flows from the Constitution, but the acceptance of that authority, i.e., legitimacy, flows from its ‘public reasoning’ function. Its ever-expanding jurisdiction calls for ‘broader’ public reasoning for its decisions.

We see an unfortunate trend where the SC is exercising its public reasoning function only when pronouncing judgments, while casually passing interim orders, without justifying them during oral hearings or in the final judgment. The SC must be conscious that interim orders must be based on the same principles and be as reasoned as a final judgment.

The final judgement in Hadiya’s case comes across as the court trying to exonerate itself for the way it handled the proceedings. In this instance, ordering NIA investigation should have been justified. However, neither does it find a mention in the order, nor in the final judgment.

This seems to be a trend. In the PIL petition in the National Anthem case, while clarifying that playing the national anthem need not be mandatory, the SC should have delved deeper into the interim order of November 29, 2016 which made it compulsory in the first place. Take the Mahatma Gandhi Assassination case. Why did it conduct multiple hearings and appointed amicus curiae Amrendra Sharan to look into the bizarre claims, despite noting in the first hearing that ‘nothing can be done in law’?

The culture of public reasoning must permeate beyond judgments – to interim orders and oral observations. We hope the judgment in the Aadhaar case gives a detailed rationale for the interim order on March 13 which extended Aadhaar-linking deadline for services like mobile services and banks, but not for subsidies and basic entitlements.

Giving reasoned justification becomes more important given the role the SC plays in shaping public opinion and political discourse. Its interim orders and observations have a sense of permanence, which cannot be undone through judgments. The way the Hadiya case was heard by the SC has legitimised the use of ‘love jihad’ and ‘ISIS Conspiracy’ in public discourse, earlier spoken in a couched language. What was earlier said in whispers and with some hesistation is now proclaimed openly without reservations.

BJP leaders Amit Shah and Yogi Adityanath invoked the issue of ‘love jihad’ during political rallies in Kerala. Shambulal Regar of Rajasthan hacked and torched a man while accusing him ‘for perpetuating love jihad’. These are painful reminders of the consequences of callous observations and unreasoned orders of the court. The way the SC heard counsels argue on the ‘ISIS conspiracy’ and ‘radicalisation agenda’ in a case about dissolution of a marriage, its belated emphasis on individual autonomy and right to choice in the final judgment seems like an afterthought, and cannot undo the permanent vitiation of public discourse on interfaith marriage.

The SC has a higher responsibility to justify its actions and impose horizontal ‘jurisprudential’ accountability. Only an adherence to a substantial notion of ‘public reasoning’, can make it not just ‘constitutionally’ but ‘legitimately’ supreme. Hadiya’s was an ordinary case made unnecessarily extraordinary. By restoring her marriage, the Court did the right thing, but it hid its true transition from ‘Shafin Jahan v. K. M. Ashokan’ to the ‘Love Jihad’ case.

(Satya Prasoon and Ashwini Tallur are lawyers working with the Centre for Law and Policy Research, Bengaluru. They are associate editors for the Supreme Court Observer Project. Views are personal.)

http://www.thecitizen.in/index.php/en/NewsDetail/index/7/13679/The-Supreme-Court-and-the-Making-of-the-Love-Jihad-Case

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