Protectors of choice

What separates a court from a khap panchayat ?

Trey Ratcliff (c) 2007

What separates a court from a khap? This is a question which is frequently being asked given the growing disquiet over continuing hearings in what has come to be known as the Hadiya case. The case concerns the ability of a young, adult woman to choose her religion and spouse. At the same time the Court is proceeding to hear Goolrukh Gupta’s case, which concerns the ability of Parsi women to retain their religious identity with a non-Zoroastrian spouse. These two cases reveal postures of a court as it debates common questions of choice, identity and gender based discrimination.

Hadiya’s choice

Hadiya’s case arises from the Kerala High Court where the parents of a 24-year-old girl allege that she has been forcibly abducted and should be returned to their custody. Such form of cases are filed under the habeaus corpus writ jurisdiction originally intended to secure the liberty of persons from illegal confinement and imprisonment by the police. Over time this norm has been relaxed to even extend to cases of kidnapping, where minor children are forcibly removed from legal custody and the police fails to act on a parent’s complaint. Even in such cases, courts are slow to issue writs of habeus corpus as the bulk of such cases are family disputes of custody and often involve disputed questions of fact. Precedents established over decades seem to have abruptly changed course in Hadiya’s case.

The High Court of Kerala which first rendered judgment in Hadiya’s case, was concerned with her safety and welfare on a petition by her parents. Her parents alleged that their daughter who was brought up as a Hindu and gained majority was forcibly converted to Islam and they feared she would be emigrated to a gulf country. In the midst of the case hearings which seem to have dragged for about seventeen months, Hadiya disclosed that not only had she willingly converted to Islam but had also married out of her own free will. There are several affidavits which are filed by her, and repeated personal interactions between her and the judges who adjudicated this case. This is further supported by third parties who have supported Hadiya over the course of time. However, the Court without citing any provision of law or adequately discussing legal precedent runs a fine comb over what is cites as factual inconsistencies to rule against her. It grants Hadiya’s custody to her parents, directs constant surveillance over her by the police, declares her marriage to be void and directs a criminal inquiry into the support given to her. This is done without meaningfully reasoning any legal provision.

A high court sets a low bar

Even though the law remains absent from the decision of the Kerala High Court it charts a torturous path of logic where factual inconsistencies are marshalled to level inconsistencies on the free will and autonomy of choice possessed by Hadiya. This is apparent in several observations recorded by the High Court that include, “as per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married”. The remark, “properly married” bears significance for it ordinarily means the satisfaction of the parents as to the choice of the spouse carries ostensible legal value. This inaccurate remark does not exist in isolation, the Court notes at other instances Hadiya’s choice to convert to Islam, “is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion”. The remark, “alien faith and religion” demonstrates to a wholly unfortunate and illegal majoritarian sentiment in the posture of the court. Despite the multiple instances on which Hadiya clearly states her conversion to islam and wedlock are out of choice, the Court negating her autonomy describes her as an, “ordinary girl of moderate intellectual capacity”.

Such remarks which support the ultimate decision of the Kerala High Court give rise to acute anxiety for constitutionalists who view courts as institutions that protect persons from actions of the state and society. Such protections are firmly anchored in our fundamental rights and the catena of cases on habeus corpus where young couples who have been forcibly abducted by relatives and then by judicial interventions reunited with their spouses. Rather than springing to correct an obvious illegality the Supreme Court has been holding hearings since July of this year passing interim orders. The details sought by the court seem legally superfluous. This raises further worry that rather than correcting an egregious abuse support is being given to an obvious miscarriage of justice.

Goolrukh’s choice

At the same time the Supreme Court has granted hearing in Goolrukh’s case on questions of the ability of Zoroastrian women to retain their religious identity if they choose to marry outside the faith. This again springs as an appeal from a regressive High Court decision, this time from Gujarat which held that under a doctrine of merger, after marriage the religion of the wife is overwritten with that of the husband. This conclusion does not fully examine how it will impact fundamental rights that protect persons from gender based discrimination. What is worrying is that on the last date of hearing the Court has suggested if a compromise is possible between the Petitioner and the trust which administers religious properties. This shows reluctance and evasion by the Court to fulfill its responsibility of reviewing the High Court decision, which would impact not only Goolrukh but thousands of other Parsi women.

Many recognize that a khap panchayat by itself is a caste driven body which lacks legal sanction and enforces it writ by brute power. It is telling that the term, “khap” derives its linguistic origin from the Sanskrit term, “kshatrap” meaning, “domain”. Its decision are arbitrary and pander to social concerns rather than individual interests. In distinction to it stands a constitutional court is built on pillars of protecting the autonomy of individuals, especially gender minorities which have faced centuries of systemic discrimination. Such safeguards are not to be products of judicial activism for they are present in our fundamental rights, anchored in specific guarantees of equality and freedom of conscience and religion.

In cases like Hadiya and Goolrukh, when the courts ignore constitutional rights the only question that can be asked is how does a court differ from a khap panchayat. Such comparison makes it evident — judicial legitimacy cannot be merely drawn from an exercise of power itself, but its content which would require meaningful reasoning of the text and spirit of the Indian constitution.

A version of this article has been published by the Business Standard.

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