New Age Islam Edit Bureau
08 December 2017
Religion over Law
By A G Noorani
Hadiya Mustn’t Be In The Dock
By Badri Raina
Hadiya Has Been Denied The Right To Choose Her Faith
By Harsh Mander
Compiled By New Age Islam Edit Bureau
December 8, 2017
One is at a loss to understand why the Supreme Court took up for hearing appeals in the highly-charged Babri Masjid case. In truth, neither side is keen on a judicial intervention, whatever they may say in public. The BJP said so when it raised the issue in its Palampur Resolution of June 11, 1989: “It just cannot be sorted out by a court of law. A court of law can settle issues of title, trespass, possession etc. But it just cannot adjudicate as to whether Babar did actually invade Ayodhya, destroy a temple and build a mosque in its place. .. The sentiments of the people must be respected and Ram Janmabhoomi handed over to the Hindus — if possible through a negotiated settlement, or else by legislation. Litigation certainly is no answer”.
However, since 1950, both sides have pursued their cause in civil suits raising issues of law and fact; on title and adverse possession. Significantly, on June 11, 1989 itself, L. K. Advani said, “I am sure it will translate into votes” in the 1989 election.
Two precedents are apposite. On May 2, 1940 the Privy Council rightly rejected the Muslims’ claim to the Shaheedganj Mosque, though a deed of dedication of 1722 existed. But from 1762, the structure was occupied by the Sikhs. The Privy Council ruled, “It is impossible to read into the modern Limitation Acts any exception for property made waqf for the purposes of a mosque”. It held the scales evenly. “There has never been any doubt that the property of a Hindu religion’s endowment — including thakurbari — is subject to the law of limitation”. The Privy Council deprecated introduction of “expert advisers” and ancient texts.
So, did the Supreme Court on 16 April 2004 in Karnataka Board of Wakf vs. Government of India and Others (2004): “As far as a title suit of civil nature is concerned, there is no room for historical facts and claims.” The Mecca Masjid was built by a saint in the 14th century. The Government of India acquired it in 1900 under the Ancient Monuments Preservation Act, 1904 (later the Ancient Monuments and Archaeological Sites and Remains Act, 1958). The Muslims’ suits on title were dismissed on the principle of adverse possession by the government. The Shaheedganj Gurudwara still stands tall in Lahore.
The Allahabad High Court not only ignored these rulings, giving primacy to faith over law, but flouted a unanimous ruling of the Supreme Court in 1994. The Babri Masjid has existed at Ayodhya since 1528. It was demolished on December 6, 1992. Parliament enacted the Acquisition of Certain Area at Ayodhya Act, 1993. On January 7, 1993 the president sought the Supreme Court’s advisory opinion. Section 4(3) of the Act abated all pending suits in respect of the Masjid. This was struck down unanimously by the five judges on the ground that it wiped out the Muslims’ case on adverse possession, even assuming that a temple existed on the site formerly. The court declined to give the advisory opinion.
A full bench of the Allahabad High Court went against these rulings. The president’s question rejected by the Supreme Court read: “Whether a Hindu temple or any Hindu religious structure existed prior to the construction of the Ram Janma Bhumi-Babri Masjid … in the area on which the structure stood?” (Ismail Faruqui & Ors. vs. Union of India & Ors.  6 SCC 360, page 385). Yet, the Allahabad High Court ordered the Archaeological Survey of India (ASI) on 5 March 2003 to answer: “Whether there was any temple/structure which was demolished and mosque was constructed on the disputed site?” On that single ground of defiance, the High Court’s judgments invite a clear rejection by the Supreme Court. The case can then proceed, if at all, strictly on the facts and the law.
By a weird order on September 30, 2010, Justices Sibqghat Ullah Khan and Sudhir Agarwal ordered a tripartite partition of the masjid. The portion where Shri Ram’s idol is kept is given to Hindus, the Nirmohi Akhara gets a portion including the Ram Chabutra and Sita Rasoi and Muslims get the leftovers. No defined area is assigned to them. Justice Dharam Veer Sharma rejected the Muslims’ case in toto.
When the appeals came up for admission on May 9, 2011 Justices Aftab Alam and R. M. Lodha found the judgment “strange”. No one had asked for the partition. This stemmed from the high court’s basic approach in giving primacy to religion over the law of the land. Religious texts were quoted to prove that the Masjid was no Masjid in the Islamic law and the Hindu religion prevailed over the law of limitation. Agarwal and Sharma held that the Masjid was erected on the site of a demolished temple. “The rule of adverse possession is not applicable according to Hindu law”.
They two judges held: “Once we find that by way of faith and traditions, Hindus have been worshipping the place of birth of Lord Rama at the site in dispute, we have no reason but to hold in a matter relating to such a kind of historical event that for all practical purposes, this is the place of birth of Lord Rama.”
This approach inspired Agarwal and Sharma’s deep excursion into the past, beginning with Mohammed bin Qasim’s invasion in 712. A litany of “Muslim” outrages followed. “Attack, demolition and construction of mosques and madrasas in place of temples and religious institutions had taken place for the last about 1,100 years,” Sharma said. Agarwal clutched at a book by an Austrian traveller Josef Tiefenthaler who had visited the site around 1766, quoting him profusely and crediting him with identifying Ram’s place of birth. Agarwal called him an “Australian Christian priest” and agreed with him that it was not Babar’s general Mir Baqi but Aurangzeb who built the Babri Masjid. The book based this on hearsay. “Others say that it was constructed by Babar,” it noted.
The Narendra Modi Government seeks to use the courts to enforce the BJP’s triple agenda — uniform civil code, abrogation of Article 370 and a Ram temple at Ayodhya. It will not enforce the Supreme Court’s verdict in case it goes in favour of Muslims. Its eyes are set on the 2019 elections.
Hadiya Mustn’t Be In the Dock
In India you may stand for election on the ticket of a political party and then betray the covenant with your constituents. Next time around, you may cross over to a rival party without incurring any moral opprobrium. Likewise, if you are a corporate honcho, you may smartly cross over to a rival business house on enhanced service benefits, and sing eloquent praises of products and business practices that you may have rubbished in conference after conference. But were you to grow up rethinking some religion you were merely born into, and decide, at some point, to reject its premises and acquire some other faith, the roof of social opinion will fall on you.
For some reason, we as individuals are expected to remain loyal to a faith which did not come to us as a conscious decision — unlike many choices we may make as we assume adulthood — but was purely the result of circumstances in which we had no part. Even in the most liberated of families, the matter of religious belief always seems excluded from authorised intellectual autonomy.
Hadiya, by all accounts, studied Islamic thought for a few years, and, of her own volition, at the adult age of 22, three years before she met her husband-to-be, chose to convert to Islam. In doing so, she was merely exercising her constitutional right to profess any faith of her choice — so long as there was no evidence of coercion, or of any authenticated and legally tenable statement from her saying that she was tricked into the act. Nor has it been substantiated by any authorised medical opinion that Hadiya, when she made her decision to convert, was in an unsound state of mind. Consider also the fact that according to a recent Supreme Court verdict, the right to privacy constitutes a fundamental right — nothing is as private a choice as faith.
No contesting lawyer has yet been able successfully to show that Hadiya’s case was anything more than one of a demand for habeas corpus. That being so, once the very adult Haldiya was located and asked in the matter, the case should have closed. But no. Hadiya’s wilful conversion to Islam seems to have become enmeshed in the overreach of “nationalist” anxieties, if not excesses.
Seventy years after Independence, we may have legislated to give the country a common market, but there still seems doubt that the provisions of the Constitution may operate without a dominant sect seeking to subjugate them to customary perceptions and discrete traditions. Time may come when it will be demanded that we have as many courts as we have sentiments, and that in all cases, individual choices must remain subservient to the diktats of the custodians of those sacrosanct sentiments (at one point, the practice of Sati was one of them).
Curiously, those social forces who everyday espouse the great need and desirability of national oneness, seem to be silent endorsers of such demands when they come from particular segments of society. Not for nothing do many social thinkers suspect that when the Hindu right-wing speaks of a Uniform Civil Code, what it has in mind is the universal application of Hindu civic laws across all communities — rather than a code evolved out of the best practices of all communities.
It is time to say that India’s democracy will never be truly credible until the republic adopts a provision akin to the American First Amendment. That provision secures to the citizen the absolute right to freedom of expression, which includes, most crucially, religious freedom so long as the exercise of this right does not occasion violence. The provision enjoins the state to enforce laws to protect every citizen’s right to profess and practice any religious faith. Think how much bigoted mayhem was caused in the US when Malcolm X and Cassius Clay embraced Islam; yet, they had the full protection of the law of religious freedom.
There is, of course, little hope that such a move might be considered during the tenure of the present government. Yet, the current contentions around the Hadiya and the Padmavati cases underscore the urgency of fortifying constitutional freedom of expression against sectarian social sentiments. Thought must be given to reforming Article 19(2) which, in its present form, more often than not, renders the exercise of this freedom a hazard more than a right. But this ideal is unlikely to work even after legislation is passed unless India’s investigating agencies—the CBI, NIA —are rendered autonomous of the government of the day, like the FBI and justice-enforcing institutions in the USA.
Hadiya Has Been Denied the Right to Choose Her Faith
Dec 07, 2017
Akhila Ashokan, a woman from Kerala, while studying homeopathy, felt drawn to Islamic teachings after she shared an apartment with two Muslim students. She heard and discussed Islamic teachings with them, and in time she resolved to convert to Islam, changing her name to Hadiya.
She created a stir when she returned to college wearing a headscarf. Her enraged father, KM Ashokan, an ex-servicemen, commanded her to return home. She refused, moving in instead with a Muslim girlfriend. Ashokan filed a habeas corpus petition with the Kerala High Court alleging that his daughter’s conversion was part of a well-oiled conspiracy to target innocent women and recruit them to the Islamic State.
Hadiya refused again to return to her father, and the court directed that she should not stay with her Muslim girlfriend and be sent instead to a women’s hostel.
She then decided to get married. On a Muslin matrimonial site she met 27-year-old Shafin Jahan employed in Muscat. When they both consented to this marriage, she was 24 years old. They invited Hadiya’s parents to the wedding, but they refused. Ashokan instead again approached the high court, charging that this was a conspiracy to move her out of India.
Two days after her wedding, Hadiya appeared in court with her husband, affirming that she had married according to her wishes and free will. She appealed that her decisions should be respected. The Kerala High Court refused, and instead sent her back to the women’s hostel in Kochi. It prohibited her to meet her husband, who had to leave his job in Muscat as the case stretched on.
The high court asked the Kerala Police to investigate the matter to see if her conversion and wedding had any terror links. The police reported that it could find no connection of Shafin with any criminal activity (except one complaint connected with student politics), let alone terrorist endeavours.
Despite this, the Kerala High Court annulled her marriage. It observed, ‘A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways’. It therefore awarded custody of this adult woman to her father. Her marriage, the judge maintained, ‘is a sham and is of no consequence in the eye of law. Her husband has no authority to act as the guardian.’
It referred to Hadiya in its judgment only as Akhila. It refused to recognise the agency of an adult woman, and maintained that her choice of marriage had no legal weight because her parents had not consented to it. It awarded the custody of the adult woman to her father, giving credence to the communally-charged conspiracy theory of ‘love jihad’.
Shafin tried unsuccessfully to get in touch with Hadiya. Her father confined her to his home and did not allow her to step out or meet anyone. Policemen watched her every move. Shafin appealed to the Supreme Court, and the matter was heard by a bench which included Chief Justice Jagdish Singh Khehar. The apex court gave her no relief, and instead directed an investigation by the National Investigation Agency. ‘The NIA’s involvement is necessary to ascertain if this is really an isolated case or is there something more… something wider…,’ the bench said. The chief justice referred to the Internet game, Blue Whale Challenge, to elaborate his apprehension that ‘such things can drive people to do anything’.
The NIA claimed that Hadiya’s conversion and marriage was not an isolated case, but part of a growing pattern of converting women from Hinduism to Islam as a means to recruiting them for terror crimes in Islamic State. Asking India’s top counter-terror investigation agency to enquire into the voluntary conversion to Islam by an adult woman and her subsequent marriage to a man against whom the police has found no evidence of any criminal or terror connections, smacks of astounding and whimsical prejudice on the part of many of those concerned.
The Supreme Court in its latest hearing has freed Hadiya from her father’s custody, but has not restored her marriage, not upheld her right to choose her religion and partner, and allowed investigations to continue into whether her conversion to Islam was linked to terrorism.
This astounding story of an adult woman denied the right to choose her faith and partner runs contrary to every guarantee in the Constitution.
Unwittingly or otherwise, Pakistan’s former army chief and military dictator, Pervez Musharraf, may have tacitly condoned the activities of Hafiz Saeed’s JuD and the outlawed Lashkar-e-Taiba, verily the dramatis personnae of the Mumbai catastrophe (26 November 2008). He has let it be known that he is “open to forming a political alliance” both with Hafiz and LeT and has thus emitted a signal that is bound to raise eyebrows, and not merely in the subcontinent.
It is far from clear whether the two militant groups, much in the manner of India’s Maoists, have a scintilla of faith in elections. With a studious sense of timing, Musharraf has disclosed his preference soon after the release of Hafiz and exactly 72 hours after the latter unveiled his political ambition by declaring that the Jammat-ud-Dawah would contest next year’s general election under the banner of Milli Muslim League. Even within the country, the former President’s statement has been binned as “outrageous”, even “fantastical nonsense”.
The GHQ in Rawalpindi is yet to react, but it cannot but be astonished by the former arny chief’s misadventure. Nor for that matter have Hafiz or the LeT leadership responded to the overture. He has kept both the military and the political class guessing over the provocation behind the announcement, though it is pretty obvious that the move comes after several parties have dissociated themselves from his very own Awami Ittehad alliance.
Far from alluding to the JuD/LeT potential to foment terror, he has referred to the two entities as “NGOs working for the welfare of the community”. Social activists in Pakistan must be aghast at so strained a justification of a fraught electoral strategy. Direly inexplicable must be his turnaround not least because as President he had initiated several steps to rein in the militants. Notably, he had outlawed certain groups with clampdowns.
In the years since he relinquished authority, both JuD and LeT have perpetrated terrorism with far greater ferocity. It is hard not to wonder whether or not Musharraf is winking at fundamentalism or endorsing its role in statecraft. Quite a turnaround for an army chief who once referred to his uniform as his “second skin” and harped on the imperative of a “moderate Pakistan” as distinct from a theocratic agenda.
Not that Musharraf is unaware of the damage that the militants have wrought to Pakistan’s economy with the country under the shadow of the terrorist gun from his heyday to the present. It is a politically bankrupt nation, with the ruling party’s leader fighting his battles in court.
Whether or not the proposed alliance between Musharraf and the militants fructifies need not detain us here. What matters most of all is that as the former army chief, Pakistan expects him to be more restrained… and not reckless. He has played to the terrorist gallery by saying that “what is happening in Kashmir should not be termed as terrorism”. Not everyone in Pakistan will readily concur.