Case BriefsSupreme Court

Supreme Court: Terming the Hadiya case as the perfect example of “patriarchal autocracy and possibly self ­obsession with the feeling that a female is a chattel”, the 3-judge bench of Dipak Misra, CJ and AM Khanwilkar and Dr. DY Chandrachud, JJ set aside the Kerala High Court verdict and held that the High Court has completely erred by taking upon itself the burden of annulling the marriage between two consenting adults, namely, Hadiya and Shafin Jahan.

Below are the important facts of the case:

  • 24-year-old Akhila alias Hadiya, had converted to Islam after staying with 2 of her friends, Jaseena and Faseena, while completing her Bachelor of Homeopathic Medicine and Surgery (BHMS) degree.
  • Hadiya refused to return to her father Asokan’s place after he filed a writ of habeas corpus before Kerala High Court in January, 2016 on the apprehension that his daughter was likely to be transported out of the country.
  • Hadiya continued to stay at the house of her aforementioned friends. She expressed her desire to complete her House   Surgeoncy   at  the  Shivaraj Homeopathic   Medical   College, Salem which has a hostel for women   where   she   was   willing   to   reside   for   the   purpose   of completing her House Surgeoncy.
  • On 21.12.2016, Hadiya appeared before the High Court and a statement was made that she had entered into marriage with Shafin Jahan. High Court noted that the marriage was totally unexpected.
  • High Court in the impugned judgment held that a girl aged 24 years is weak and vulnerable and capable   of   being   exploited   in   many ways and thereafter, the Court, exercising the parens patriae jurisdiction, observed that it was concerned with the welfare of the girl of her age and hence, the custody of Akhila alias Hadiya should be given to her parents.

The Kerala High Court allowed her to complete her studies but held:

“Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents. The marriage which is alleged to have been performed is a sham and is of no consequence in the eye of law.”

CJI, writing for himself and Khanwilkar, J, held that non­-acceptance of Hadiya’s choice would simply mean creating discomfort to the constitutional right by a Constitutional Court which is meant to be the protector of fundamental rights. Such a situation cannot remotely be conceived.

He wrote:

“The exposé of facts in the present case depicts that story giving it a colour of different narrative. It is different since the State that is expected to facilitate the enjoyment of legal rights of a citizen has also supported the cause of a father, an obstinate one, who has endeavoured immensely in not allowing his daughter to make her own choice in adhering to a faith and further making Everestine effort to garrotte her desire to live with the man with whom she has entered into wedlock.”

Chandrachud, J also came down heavily upon the Kerala High Court for following an erroneous approach and writing down a separate but concurring judgment, said:

“The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226.”

The Court, however, permitted the National Investigation Agency (NIA) to continue the investigation in respect of any matter of criminality. However, the validity of the marriage between Shafin Jahan and Hadiya shall not form the subject matter of the investigation. The Court made it clear that “nothing contained in the interim order of this Court will be construed as empowering the investigating agency to interfere in the lives which the young couple seeks to lead as law abiding citizens.”

The Court had passed the operative order in the present matter on 08.03.2018.

[Shafin Jahan v. Asokan K.M.,  2018 SCC OnLine SC 343, decided on 09.04.2018]

Case BriefsHigh Courts

Rajasthan High Court: While deciding the instant habeas corpus petition, the Division Bench of G.K. Vyas and Dr. V.K. Mathur, JJ., laid down the following guidelines to check the problem of forcible conversion of religion:

· Any individual who wishes to convert to a particular religion will do so only when they attain the age of majority. The interested individual should also satisfy themselves with the minutiae of conversion to a religion.

· The authorities performing the ceremony of conversion should ensure that whether the person concerned is desirous to change the religion, is having full faith in the newly adopted religion. It should also be ascertained whether such person is acting under any threat or not.

· The person, who is desirous of conversion, shall give information to the District Collector/SDM/SDO of the city concerned before conversion, and the SDM shall put up the information upon the notice board of its office.

· The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.

· If any marriage in the form of any nomenclature of any religion will be performed after conversion in contravention of above guidelines, then such marriage of any nomenclature can be declared voidable upon complaint of the aggrieved party.

· The aforementioned Guidelines shall be in force till the time Rajasthan Dharma Swatantrya Act, 2006 or any other Act governing the subject-matter came into existence in State of Rajasthan to protect the forcible conversion of religion.

As per the facts of the instant case, the petitioners alleged that the petitioner’s sister was abducted and was forcibly converted to Islam and under duress was married to the 2nd respondent (Faiez). The counsel for the petitioners M.R. Singhvi pleaded before the Court to declare the marriage illegal and that certain Guidelines maybe passed enlarging the scope of the petition and in accordance with the jurisdiction of the Court under Article 226 of the Constitution. The counsel for the respondent Mahesh Bora contended that the allegations leveled against the 2nd respondent are false and that the marriage took place with the consent and willingness of both the parties. It was also contended that scope of this petition cannot be enlarged so as to accept the prayer to issue guidelines in spite of the fact that Rajasthan Dharma Swatantrya Act has been enacted by the State Legislature, which is awaiting assent by the President. The learned Additional Advocate General SK Vyas representing the State Government stated that, the 2006 Act is still awaiting President’s assent and since the nature of the matter is serious, therefore the Court must issue certain guidelines so as to prevent forcible conversion of the people in general and girls in particular.

Perusing the contentions of the parties, the Court observed that every citizen has a fundamental right of freedom of religion under Article 25 of the Constitution, but at the same time, it is the duty of every citizen to protect the feelings of other religions and not act contrary to the provisions of Constitution. Therefore the Court deemed it appropriate to issue the aforementioned Guidelines.

The Court referred to Dwarka Nath v. Income Tax Officer, Special Circle D Ward, Kanpur, (1965) 3 SCR 536 : AIR 1966 SC 81 and Comptroller & Auditor General of India v. K.S. Jagannathan, (1986) 2 SCC 679 : AIR 1987 SC 537, where the Supreme Court had specifically mentioned that under Article 226 of the Constitution of India, the High Court has the authority to issue guidelines in the interest of public.

Furthermore the Court clarified that the petitioner’s sister and the 2nd respondent being adults are at liberty to live their lives as per their choices and the Guidelines issued will not affect their rights. [Chirag Singhvi v. State of Rajasthan through Police Commissioner, 2017 SCC OnLine Raj 3180, decided on 15-12-2017]

Case BriefsInternational Courts

European Court of Human Rights: In the matter dealing with validity of the ban on the wearing in public of clothing that partly or totally covers the face under the Belgian law of 1 June 201, the Court held that the ban does not violate the right to respect for private and family life; freedom of thought, conscience and religion given under Articles 8 and 9 of the European Convention on Human Rights, nor does it violate Article 14 that provides for prohibition of discrimination.

Freedom of thought, conscience and religion

The Court said that ban was valid as it sought to guarantee the conditions of “living together. It was explained that under Article 9 of the Convention the State had a broad margin of appreciation to decide whether and to what extent a restriction on the right to manifest one religion or convictions was “necessary”. In adopting the provisions in question, the Belgian State had sought to respond to a practice that it considered to be incompatible, in Belgian society, with social communication and more generally the establishment of human relations, which were indispensable for life in society. The Court also took note of the fact that the decision-making process leading to the ban in question had taken several years and had been marked by comprehensive debate in the lower house of Parliament and by a detailed examination of the various interests by the Constitutional Council.

Proportionality of the restriction

Considering the sanction for non-compliance with the ban under Belgian law that ranges from a fine to a prison sentence, the Court said that the main sanction is the fine, being the lightest penalty and that imprisonment is reserved for repeat offenders and was not applied automatically. Hence, the ban, even though it was controversial and undeniably carried risks in terms of the promotion of tolerance in society, could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”.

Prohibition of Discrimination

Explaining that as per Article 14, a policy or measure can be regarded discriminatory is that policy or measure lacked “objective and reasonable” justification, if it did not pursue a “legitimate aim” or if there was no “reasonable relationship of proportionality” between the means used and the aim pursued, the Court said that the law in question had an objective and reasonable justification for the same reasons.

The Court was hearing the plea of 2 Muslim women who contended that they had decided on their own initiative to wear the niqab, a veil covering the face except for the eyes, on account of their religious convictions. One of the women contended that the ban forced her to remove her veil temporarily, being afraid that she might be stopped in the street and then heavily fined or even sent to prison. While the other said that she had decided to stay at home, with the resulting restriction on her private and social life. The judgment was delivered by a 7-judge chamber consisting of President Robert Spano (Iceland), Julia Laffranque (Estonia), I??l Karaka? (Turkey), Nebojša Vu?ini? (Montenegro), Paul Lemmens (Belgium), Valeriu Gri?co (the Republic of Moldova), Stéphanie Mourou-Vikström (Monaco). [Belcacemi and Oussar v. Belgium, Application no. 37798/13, decided on 11.06.2017]

Case BriefsSupreme Court

Supreme Court: Stating that there is no connection or association of Jallikattu, a festival involving bull race, with the right of freedom of religion in Article 25, the Court said that the Tamil Nadu State Legislature could not have enacted any law like the Tamil Nadu Regulation of Jallikattu Act, 2009 as when a bull is “tamed” for the purpose of an event, the fundamental concept runs counter to the welfare of the animal which is the basic foundation of the Prevention of Cruelty to Animals Act, 1960. There is a frontal collision and apparent inconsistency between the PCA Act and the 2009 Act.

Rejecting the argument by the State of Tamil Nadu that every festival has the root in the religion and when Jallikattu is an event that takes place after harvest, it has the religious flavor and such an ethos cannot be disregarded, the bench of Dipak Misra and R.F. Nariman, JJ said that it is inconceivable that a bull which is a domestic animal should be tamed for entertainment and a wide ground can be put forth that it is not a ticketed show, but meant for celebrating the festival of harvest. Such a celebration for giving pleasure to some, both the participating and the people watching it is such an act that is against the welfare of animals and definitely amount to treating the animal with cruelty.

It was also argued that the 2009 Act falls under Entries 14 and 15 of List II of the VIIth Schedule of the Constitution and, therefore, the test of validity cannot be on repugnancy, the Court rejected the argument and said that solely because the event takes place after the harvest, it cannot be associated with agriculture. As far as Entry 15 is concerned, it provides for preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice. The Entry is meant to confer power on the State Legislature to legislate with regard to the preservation, protection and improvement of stock and preventing any kind of animal diseases. Hence, neither Entry 14 nor Entry 15 would cover the 2009 Act.  The activity Jallikattu falls squarely within Entry 17 of List III and, therefore, it has to be tested on the anvil of repugnancy. [Chief Secretary to the Govt., Chennai Tamilnadu v. Animal Welfare Board, 2016 SCC OnLine SC 1397, decided on 16.11.2016]