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Saturday, Aug 24, 2019

Hadiya has the Constitutional right to make her own choices

To every adult citizen, the Constitution proclaims: “The State is not your keeper. Your family is not your keeper. You are free to make your choices, and yes – free also to make your mistakes.”

analysis Updated: Nov 28, 2017 20:05 IST
Gautam Bhatia
Gautam Bhatia
Hadiya at the Supreme Court after the hearing in New Delhi on Monday, November 27
Hadiya at the Supreme Court after the hearing in New Delhi on Monday, November 27(Vipin Kumar/HT PHOTO)

On Monday, the Supreme Court witnessed an odd event. A 24-year-old woman called Akhila had changed her name to Hadiya, converted to Islam, and chosen to marry against her parents’ wishes. While this was no extraordinary story, what happened afterwards was. Hadiya’s father approached the Kerala High Court, which annulled her marriage, and sent her back into her parents’ custody. Soon enough, the case wound its way to the Supreme Court, where Hadiya’s parents, the State, and the court-appointed National Investigative Agency argued that despite being an adult woman, Hadiya had been brainwashed and indoctrinated into her marriage, and was incapable of making a free choice.

These arguments are not new. In fact, they have a lineage that is not immediately obvious, but which has exercised its grip over our nation for a long time. In March 1947, Winston Churchill said that granting independence to India would mean handing over the country to “men of straw... of whom nothing would remain in a few years”. This was in line with a long tradition of colonial discourse, which justified its rule by holding that India remained a child in the “waiting room of history”, destined to remain under the tutelage of the benevolent British..

For more than a century, Indians resisted this political infantilisation. They demanded rights, drafted charters, and engaged in the limited representative government on offer. The culmination of this struggle was the attainment of freedom, and the framing of India’s Constitution. But the men and women who drafted the Indian Constitution were, for the most part, highly educated people with a long history of political engagement. They had access to resources that were denied to a vast majority of their compatriots. In the Constituent Assembly, therefore, some members asked: could this newly-won political independence be simply be extended to every Indian citizen – even the poorest and the most illiterate? Were Indians ready for freedom? Would they exercise it responsibly? Would it not be better, for example, to limit the vote to those who were educated, and would use it appropriately?

But the Assembly, led by BR Ambedkar, realised the intellectual and moral bankruptcy of this neo-Churchillian argument. The result was a Constitution that, in guaranteeing equality, fundamental freedoms, and universal adult suffrage, transformed every Indian from subject to citizen. This was unprecedented. Other countries had long drawn-out struggles, each of them denying important freedoms to significant parts of their populations – most often women – on the basis that they were simply not capable of being free. The framers of our Constitution, however, decided to take a leap of faith. And in doing that, they set an example to the world.

The Constitution, thus, is founded on a simple idea: to every adult citizen, it proclaims: “The State is not your keeper. Your family is not your keeper. You are free to make your choices, and yes – free also to make your mistakes.” It was as Ambedkar said: “The Constitution... has adopted the individual as its unit.” And the Supreme Court recognised this some months ago in its famous privacy judgment, upholding the “autonomy of the individual and the right of every person to make essential choices which affect the course of life.”

For this reason, there was a sense of unreality this Monday at the Supreme Court, especially when, after two hours of argument, the Court finally asked Hadiya what she wanted. Her answer was clear: to be free and to live with her husband. Here then, was the replication of the old colonial dilemma: once, a nation had spoken against those who claimed the right to speak for it. Now, a citizen spoke against those who claimed a right to speak for her.

Under our Constitution, there could be only one answer. It was an answer that the Supreme Court provided only partially. It freed Hadiya from her parents’ custody and sent her to finish her studies. But the equally fundamental questions – regarding her choice to marry and to live with her husband – remain in the balance, and will be heard in January. When that happens, the Court must remember that “the Constitution [having] adopted the individual as its unit” means nothing if an individual must prove to the satisfaction of the State she possesses the agency to decide for herself.

There have been regimes, past and present, where individuals – Jews, Dalits, women – have been required to prove before the State that they deserve to be treated as individuals. We are not there yet. The Supreme Court must ensure that, under our Constitution, we shall always be individuals free and able to make our own choices, and banish Churchill’s ghost once and for all.

Gautam Bhatia is an advocate in the Supreme Court

The views expressed are personal

First Published: Nov 28, 2017 17:58 IST

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