NIA probe into Kerala ‘love jihad’ is another blow to individual autonomy
India at 70 is indeed doing well in terms of everything and one takes pride in seeing her coming of age as a major global power. But if the success of a liberal democracy is assessed on the basis of individualism and rights of the individual, then it seems we are going in the opposite direction. Freedom of speech is being curtailed in the name of sedition even in violation of the Supreme Court’s order that mere words do not amount to sedition. Books are banned and films are censored because we do not trust individuals anymore. The right to privacy is being curtailed in the name of the Aadhaar card and now even freedom to marry a person of one’s choice is under threat and may be termed as terrorist activity to be probed by the National Investigation Agency (NIA).
Authoritarian governments the world over do not believe in the rights discourse. They always talk in terms of larger ‘public interest’ and their jurisprudence is generally duty-centric. Indira Gandhi thus inserted Article 51A on fundamental duties.
Strangely even the apex court does not attach much significance to individual autonomy — in overruling the progressive Naz Foundation judgment of the Delhi High Court striking down the archaic Section 377 of Indian Penal Code, in not taking up the aadhaar challenge for over two years, in the kinds of questions that came from the nine-judge privacy bench and, now, in ordering an NIA probe into the marriage of a 24-year-old BHMS graduate.
Decades ago in a kidnapping case where a Class 11 girl had eloped with a boy, the court had refused to punish the boy on the basis that the girl went with him on her own volition and she was mature enough to take her decisions. In the current case, the Kerala High Court, which interacted with the girl on several occasions and ordered a number of times that the girl is not under anybody’s influence or in any kind of illegal detention, has suddenly got suspicious after the girl married a Muslim. It is now treating it as a case of ‘love jihad’ because there was some discrepancy in her name in the nikahnama and the panchayat marriage registration request, the boy allegedly had a criminal case pending against him, his mother was working in West Asia and thus he was likely to ‘transport the girl out of country’ without even realising that she has not even applied for a passport.
The court ordered that she must complete her internship and expressed its displeasure that her marriage was without her parents’ concurrence. In a country where honour killings still take place, these observations not only show patriarchy but can also play havoc with the life of individuals who want to marry against the wishes to their parents or village elders. Also, the power to annul a marriage between two adults is not given to courts under the Indian legal system.
The court overlooked the fact that as per law one can marry even a person on death row and one also has a right not to finish one’s professional training. The court accepted everything that her father said and gave her custody to him without giving any credence to her testimony. The court called this mature and educated girl “vulnerable”.
A change of religion is purely a private matter with which public officials should have nothing to do. Such conversions cannot be equated with terrorism in the absence of any authentic empirical study proving its existence. We should not indulge in over-generalisations on the basis of isolated cases. Strangely the Kerala High Court treated it as love jihad just because another similar case was pending with it. The NIA made a similar claim in the apex court and the court accepted it, it appears.
The redeeming feature of the Supreme Court’s order is the supervision of the NIA probe by Justice RV Raveendran. Let us hope that the Special Marriage Act permitting such marriages will not be repealed.
Faizan Mustafa teaches constitutional law
The views expressed are personal