JUDICIAL REVIEW AT TIMES STANDS ON FRAGILE GROUND

One of the sorriest episodes in India’s judicial history was finally brought to an end in March with the Supreme Court judgment in Shain Jahan v. Asokan K.M., or the Hadiya case as we’ve come to know it. Through two separate but concurring opinions, one written by Chief Justice of India (CJI) Dipak Misra, for himself and Justice A.M. Khanwilkar, and the other by Justice D.Y. Chandrachud, the court has reversed a most reprehensible ruling by the Kerala High Court. Yet, a collective reading of these opinions, released in a detailed order last week, tells us only a part of the story.

The judgment aims to speak in stirring language. It focuses attention on the centrality of individual freedom and autonomy under India’s constitutional scheme. “It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity,” the CJI writes, in his characteristically fustian style. “Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom.”

But this bombast veils the Supreme Court’s own conduct in the case. The opinions do not offer anything resembling an apology for the court having allowed a savagely degrading process of decision-making to fester for far longer than it should have. Indeed, the entire case from its inception had been marked by a sense of tragedy. The tale it tells is depressing: that the courts, designed under our democratic scheme to act as a bastion of fundamental rights, are just as capable as the other wings of government in enforcing the most wrenching forms of paternalism.

It was in January 2016 when Asokan irst approached the Kerala High Court. His grievance was that his daughter, who was born a Hindu, with the given name Akhila, and who had later converted to Islam, taking the name Hadiya, was being illegally detained against her wishes. But the court initially rejected these claims. Ms. Hadiya, it held, was staying at a hostel run by the “Markazul Hidaya Sathyasarani Educational & Charitable Trust” entirely of her own volition.

However, in August that year, Asokan once again went to the High Court, this time on an apparent apprehension that Ms. Hadiya was likely to be “transported out of the country”. When the petition was still being heard, in December, she married Shain Jahan. Just months later though, on May 24, 2017, the High Court granted Asokan her custody, and, what’s more, annulled her marriage with Mr. Jahan altogether.

At play here was an inexplicable show of moralism. “A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways,” the Bench wrote. “This Court exercising parens patriae jurisdiction is concerned with the welfare of a girl of her age. The duty cast on this Court to ensure the safety of at least the girls who are brought before it can be discharged only by ensuring that Ms. Akhila is in safe hands.”

Even intuitively there are two clear problems with this judgment: one, Ms. Hadiya wasn’t a girl, but was an adult woman making her own choices on how she wanted to lead her life; two, Kerala, unlike some other States that have dangerously draconian anti-conversion laws, does not prevent an adult from converting to a different religion, or from marrying a person of different faith.

A SLOW PROCESS

Astoundingly, though, when Jahan approached the Supreme Court against this verdict, the court didn’t quite deem it necessary to grant Ms. Hadiya the bare dignity of a hearing, to ask her what she might have wanted. To the Supreme Court, much like it was to the Kerala High Court, she was only a girl; she simply couldn’t be trusted to do the right thing.

When the appeal irst came up for hearing, the court also didn’t so much as venture to wonder how the Kerala High Court could get things so badly wrong, how it could have annulled a marriage in a proceeding for habeas corpus. It should have been obvious to the court that when judges introduce their own set of restrictions on liberty, not only do they impinge on principles of separation of powers, but they also violate their pledge to bear true faith and allegiance to the Constitution.

Instead, the Supreme Court Bench, presided at the time by CJI J.S. Khehar, unleashed the might of the National Investigation Agency (NIA) on the parties, directing the authority to probe into the case. The order, though, was silent on what the scope of this inquiry might be, in the process effectively granting the NIA a carte blanche, allowing it to wander where it pleased, well beyond its statutory limitations.

Eventually, it was only in late October last year — when the bench was headed by Chief Justice Misra — that the court inally called for a hearing from Ms. Hadiya. When it listened to her, it became clear to the court that she’d made her own choices, making the judgment that has now followed essentially unexceptionable. After all, it oughtn’t to have required much in the way of analysis to see that the Kerala High Court’s verdict was not only lawed, but that it had resulted in a lagrant miscarriage of justice.

Habeas corpus has its origins in British common law, predating even Magna Carta. The idea behind the writ is to direct a detainee’s presence in court so as to help the court understand if there was any legal justiication for the person’s imprisonment.

The court’s role, therefore, when a petition for habeas corpus is iled is narrow. It is only, as Chief Justice Misra writes, “to see that the detenue is produced before it, ind out about his/her independent choice and see to it that the person is released from illegal restraint.” When exercising this power, the court, the CJI holds, has to remember that an individual’s decisions must be respected. If it becomes clear that a person isn’t being held against her wishes, “the enquiry and determination have to come to an end.”

ESSENTIAL PRINCIPLES

But as routine as this verdict has ultimately proved to be, perhaps given the times that we live in, it was important that the court reafirmed certain principles that lie at the heart of the Constitution: that, for instance, an adult person, possessing the abil- ity to act out of her own will, should be allowed responsibility for her own life. After all, the Constitution affords protection to individual autonomy, to the intimate decisions that a person might make, whether they relate to speech, sex, marriage, procreation or religion. The state, which includes the judiciary, cannot interfere in these matters of personal foundation in a bid to enforce a collective ethical judgment. Individuals must be left to decide for themselves how they each want to lead their lives. A judge’s holy writ cannot be used as a means to inagle the imposition of a coercive and majoritarian vision.

Or, as Justice Chandrachud puts it: “In deciding whether Shain Jahan is a it person for Hadiya to marry, the High Court has entered into prohibited terrain. Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.”

These words, read in isolation, are no doubt rousing. But ultimately this was a case of the Supreme Court correcting errors of the judiciary’s own making. The lessons to take away from it are many. Foremost among them is this: we must recognise that our courts too can be propelled by impulses entirely opposed to the Constitution, that the glory of judicial review, prized by us all, stands on fragile ground.

The case showed us how courts too can be propelled by impulses entirely opposed to the Constitution