Breaking: #Hadiya- Strength of Constitution lies in acceptance of plurality

Breaking: #Hadiya- Strength of Constitution lies in acceptance of plurality

Murali Krishnan

The Supreme court has delivered its reasoned judgment in the Hadiya case. The judgment was rendered by Chief Justice Dipak Misra and Justices AM Khanwilkar and DY Chandrachud a month after it had set aside the Kerala High court verdict.

While Justice Misra delivered judgment on behalf of Justice Khanwilkar and himself, Justice Chandrachud authored a separate concurring judgment.

In the majority opinion Chief Justice Misra has stated that the High Court in annulling the marriage was erroneously guided by some kind of social phenomenon that was frescoed before it. The Court took note of the fact that Hadiya’s father Asokan had first filed a writ petition and when Hadiya had expressed her desire to go with Respondent 7, the High Court had so directed.

Subsequently, the adamantine attitude of the father, possibly impelled by the obsessive parental love, compelled him to knock at the doors of the High Court in another Habeas Corpus petition whereupon the High Court asked for production of Hadiya.

Hadiya, then came with the person whom the High Court called a stranger, though she insisted she had married him. The Supreme Court observed that though Hadiya had gone with Respondent 7, that does not mean that she as a major cannot enter into a marital relationship.

“The High Court unwarrantably took exception to the same forgetting that parental love or concern cannot be allowed to fluster the right of choice of an adult in choosing a man to whom she gets married. The High Court should have, after an interaction as regards her choice, directed that she was free to go where she wished to.”

The Court further stated that the High Court erred in reflecting upon social radicalization and other aspects. It has stated that if there was any criminality in any sphere, it was for law enforcement agency to do the needful.

“The High Court further erred by reflecting upon social radicalization and other aspects. In a writ of Habeas Corpus, it was absolutely unnecessary. If there was any criminality in any sphere it was for law enforcement agency to do the needful but as long as the detenue has not been booked under law, the obligation of the court is to exercise the celebrated writ that breathes life into our Constitutional guarantee of freedom.”  

Regarding the exercise of Parens Patriae jurisdiction by the High Court, the Supreme Court after relying on a catena of cases held that the same can be exercised only in exceptional cases where the parties before it are either mentally incompetent or have not come of age and it is proved to the satisfaction of the court that the said parties have either no parent/ legal guardian or have an abusive or negligent parent/ legal guardian.

The Court also brushed aside the contention of Senior Advocate Shyam Divan of treating a major as a vulnerable adult for exercising Parens Patriae jurisdiction. This, the court said, was based on its interaction with Hadiya, which convinced the Court that there was nothing to suggest that she suffers from any kind of mental incapacity or vulnerability.

“She was absolutely categorical and unequivocal in the expression of her choice”.

In the concurring judgment rendered by Justice Chandrachud, some pertinent observations have been made about individual liberty and freedom of choice as facets of Article 21. Justice Chandrachud states that right to marry a person of one’s choice is integral to Article 21 of the Constitution and the same cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable.

“The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness.”

In a significant passage on the philosophy embodied in our Constitution, Justice Chandrachud has said,

Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.”

Justice Chandrachud also voiced his concern about “paternalism” reflected in the Kerala High Court judgment, which was a factor for Supreme Court’s intervention.

“The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal.”

The superior courts, when they exercise their jurisdiction Parens Patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the state nor society can intrude into that domain, he held.

And most noteworthy was his passage on the protection afforded by the Constitution to plurality and diversity of our culture, which the Courts are duty bound to protect.

The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty bound not to swerve from the path of upholding our pluralism and diversity as a nation.”

Interference by the State in such matters of marriage and choice has a seriously chilling effect on the exercise of freedoms and will dissuade other to exercise their liberties for fear of the reprisals.

“The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.”

Justice Chandrachud also observed that the fact that Hadiya chose to marry Shafin Jahan was irrelevant to the outcome of the Habeas Corpus petition.

“Even if she were not to be married to him, all that she was required to clarify was whether she was in illegal confinement. If she was not, and desired to pursue her own endeavours, that was the end of the matter in a habeas corpus petition. The fact that she decided to get married during the pendency of the proceedings had no bearing on the outcome of the habeas corpus petition. Constitutionally it could have no bearing on the outcome.”

The Court, therefore, set aside the judgment of the High Court. However, it has allowed investigation by the NIA in respect of any matter of criminality.

Read the judgment below.

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