Who Infringed Hadiya's Privacy?

NEW DELHI: August 2017 was indeed noteworthy, with the Supreme Court of India passing some landmark decisions having far-reaching impact. From holding triple talaq to be unconstitutional to declaring privacy to be a fundamental right, the common thread has been the protection of individuality, dignity and liberty of every citizen of the country.

However, amidst the cherished moments, it is regrettable that in Hadiya’s case, the Supreme Court not only refused to align itself with these constitutional principles, but rather de-recognised the basic rights of an adult woman.

Akhila, a 24 year old student of Bachelor of Homoeopathic Medicine & Surgery, decided to become Hadiya while exercising her constitutionally guaranteed rights and freedoms and also exercised her choice in choosing her husband, independently of her parents. Notwithstanding Hadiya’s repeated assertions that it was her conscious decision to change her religion and that she desired to stay with her husband, the High Court of Kerala termed it to be a ‘forcible conversion’.

The High Court annulled the marriage and ordered “the young girl at a vulnerable age” to be sent to “the custody” of her parents “until she is properly married”, “as per Indian tradition”. To add to it, the Court ordered an expeditious police investigation in this matter.

Sadly, the High Court found it “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” and to have married someone of that faith and religion.

One wonders how the Court could have been oblivious of the fact that in millions of households in India there are young girls in their 20s, or even younger, studying in schools and colleges who are forced by their parents to abandon their studies to get married to ‘suitable boys’ and to set out in pursuit of learning how to assume responsibilities of married life.

There are girls as young as 10 years who are forced to abandon studies, once they are raped and impregnated by their acquaintances, and to set out in pursuit of learning motherhood. Such instances do not appear worthy of judicial notice, perhaps because these cases do not fit into the “not normal” categories and are acceptable in our society.

The Supreme Court, instead of overturning this absurdity of the High Court, suspected a larger motive of inducting youth for terror outfits and transferred the investigation into Hadiya’s private life to the National Investigation Agency under the guidance of a retired Judge of the Supreme Court.

By ordering a probe and surveillance into the private life of Hadiya, the Supreme Court has unfortunately rubbished Hadiya’s ability as an independent adult human being to take decisions for herself. Both the Supreme Court and the High Court arrogated to themselves Hadiya’s authority to retain autonomy of the body and mind and on vital matters concerning her life.

The Courts, who the Constitution has mandated to be the sentinel of rights of every individual, invaded into her life and liberty and reduced her to a chattel not capable of possessing any free will or self-determination to conduct her life. The sanctity of her personal space, family life, married life was entirely stripped off her.

To say the least, the Courts infringed her Right to Privacy, which has been declared as an inalienable fundamental right of every citizen by the Constitution Bench of the Supreme Court. Ironically, it was within few days of ordering a probe into Hadiya’s life that the Supreme Court penned the historical judgement where it inter alia observed that -

“Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.”

It can be safely concluded that Hadiya has been denied her fundamental right to privacy. The real question that arises is as to who is to be blamed for the present consternation of Hadiya- her parents, society, investigating agencies or the Courts?

In my opinion, all must share the blame, with the Courts doing themselves a disservice by giving such judicial sanction. The judicial decision in Hadiya’s case would stand out as one perpetuating the prevalent idea of women as ‘lesser beings’ in our patriarchal society.

(Kunika is an Advocate & Barrister)