NIA Probe Into Love Jihad Case: Have Those Outraged Read The Kerala HC’s Judgement? 

by Krishna Thanezth - Aug 21, 2017 05:52 PM +05:30 IST
NIA Probe Into  Love Jihad Case: Have Those Outraged Read The Kerala HC’s Judgement? Women associated with India Against Love Jihad hold placards and form a human chain to protest against love jihad and conversion to Islam at MP Nagar on September 12, 2014 in Bhopal, India. (Mujeeb Faruqui/Hindustan Times via Getty Images)
Snapshot
  • Given the circumstances specific to the Kerala love jihad case, the Supreme Court’s decision should be welcomed.

    Those outraging against it would do well to read the judgement of the Kerala HC in the matter.

The spate of articles in print and online media that appeared after the Supreme Court allowed the National Investigation Agency (NIA) to probe an alleged case of ‘love jihad’, seemed to have ignored the specifics of the case, focusing only on an alleged ‘judicial overreach’ in invalidating the marriage and religious conversion of the girl. It’s important, however, to examine the facts and circumstances of the case before attempting to arrive at a conclusion.

In this regard, let’s analyse the Kerala High Court judgement setting aside the marriage and conversion. The judgement, which is almost 100 pages long, details all the facts and circumstances based on which the court has taken a controversial stand of restricting the rights of a citizen.

The girl in question, Akhila, was pursuing a course in Homoeopathy in Salem, Tamil Nadu, when she was apparently “influenced” by her roommates to convert to Islam, after which she started to follow the Islamic faith without formally announcing the change of faith. She decided to become a Muslim, openly, when in November 2015 her relatives forced her to perform rituals when she was home for 40 days to attend her grandfather’s funeral ceremony, causing mental anguish to her.

She left home on 2.1.2016 and headed straight to the house of Jaseena, one of her two friends in question, instead of going to Salem. Jaseena’s father attempted to enrol her in an institution offering classes in Islamic theology. She was finally admitted to Satyasarani (the institution’s website, makes it clear that the organisation functions to convert people from Christianity and Hinduism to Islam). Meanwhile, Akhila’s father filed a habeas corpus petition in the Kerala High Court pleading before it to present her daughter before her because she was untraceable. The Kerala HC, in a judgement dated 25 January 2016, directed that the parents of Akhila be allowed to meet her, and instructed Akhila to present a certificate proving her admission to the course.

Later, a new writ petition was again filed by her father on 16 August 2016 claiming that his daughter was likely to be taken out of India. He alleged that his daughter was forcibly converted to Islam. The court ordered the police to track down Akhila. However, the police was unable to find her. At this juncture, the girl along with “social worker” Sainaba, with whom she was residing, arrived at the court. The court ordered a thorough investigation into the matter, and also ordered the girl to be accommodated at a ladies hostel, expenses of which would be borne by her father.

Later, the girl was allowed to return to the social worker’s house by the court. The father, however, expressed apprehension on the fate of her daughter during the next hearing. He said that his daughter had still not completed house surgency, which is required to be a qualified homoeopathy professional. The court expressed its concern about the financial position of Akhila, and asked the social worker as well as the girl to disclose their means of income. (It is to be noted that the counsel for Akhila claimed that she was practising her profession, but this turned to be fallacious as she had still not completed her house surgency, and was thus unqualified to practise.) The court passed an order on 19 December requiring the presence of Akhila along with the required certificates on 21 December 2016, and permitted her to join a house surgency course, so as to acquire a professional qualification.

This is where the facts of the case took a remarkable turn: When Akhila appeared before the court on the 21 December, she appeared along with a stranger. On enquiry, the stranger claimed to be the girl’s husband. They were apparently married on 19 December under Muslim religious rites at the house of the ‘social worker’. The court however observed that there lies an ambiguity about the legal status of the marriage, observing this in the order passed on 21 December:

We do not know what is the organisation that has issued the certificate. It is not clear whether it is even registered. Whether it is only a paper organisation alone, also requires to be ascertained. The certificate which is a photocopy dated 20.12.2016 is taken on file and shall be retained as part of the records of the case.
Kerala HC

Further, the court observed that there were discrepancies in the marriage registration certificate issued to the couple:

The learned Senior Counsel has also handed over to us photostat copies of receipts issued by the Othukkungal Grama Panchayat on 20.12.2016, evidencing payment of money for registration of the marriage between one Shefin Jahan (the husband) and Hadiya. However, the name that appears in the marriage certificate is Shefin Jahan. The name of the girl is mentioned as Hadiya, daughter of Akhil Asokan, which doesn’t make sense. The identities of the persons who are referred to in the certificates are to be verified and ascertained with certainty, in the first place, apart from the genuineness of the organisation that has issued the same.

It was also further stated by the government pleader that social worker Sainaba was involved in another case of forcible conversion, in which that girl was advised to marry a Muslim man so as to avoid any interference by the court. This case was also under investigation, according to the pleader. The court thus ordered the girl to reside at a hostel, and asked the police to investigate the incident. However, the report was unsatisfactory, and ordered a re-investigation, and asked for the antecedents of Jahan, who is alleged to have married Akhila.

On investigation, while the girl claimed to have converted to Islam (officially) in 2016, the government of Kerala produced an affidavit signed on 10 September 2015, in which she claimed to have converted to Islam, and was living under a Muslim name, ‘Aasiya’. The respondents also failed to mention the role of another Muslim couple who were also involved in Akhila meeting Jahan. The court also observed another discrepancy: The girl had filed an earlier writ petition in the High Court bearing the name “AkhilaAshokan @ Adhiya” while in the present writ petition, her affidavits are filed as “AkhilaAshokan @ Hadiya”. The court expressed its disappointment at the failure of the police to investigate all these discrepancies.

The court observed that the financial position of both the girl and others involved in the case remained a mystery. They had engaged a senior counsel, and the court concluded that the respondents had organisational backing, considering the travel expenses Akhila must have incurred to not only meet Jahan at Ernakulam, but to reside at Sainaba’s house in Kottakal, as well as her travel to and from Salem.

All these facts were taken into account when the court made the following observation:

...she stated before Court that she wanted to complete her House Surgeoncy. When this Court wanted to permit her to undertake her House Surgeoncy Course, we are informed that she had got married. Her conduct cannot be accepted as that of a person who is possessed of her faculties. She has no idea as to what she wants in life. She appears to be under the control of someone else. It is evident that she has been indoctrinated and influenced by persons whose identities have not been ascertained. An attempt is made in these proceedings to give an impression that all the other players involved have acted only on the request of Ms. Akhila. Such a story is unbelievable. The Police authorities could have unearthed materials, had they probed the call details of Ms. Akhila. No such attempt has been made in the present case

Further, it is very clear from the facts and circumstances that the marriage between Jahan and Akhila is an arranged marriage, meant to impede the authority of the court. Jahan is also an active member of an Islamist political group called Social Democratic Party of India (SDPI), and is an accused in a criminal case. Almost all respondents in this particular instance are somehow or the other connected to the SDPI or to its sister organisations.

Even more so, Jahan is an associate of one “Mansy Buraqui” who was arrested by the NIA for his alleged connection with the Islamic State through SDPI.

I would request everyone who questions the judgement to do a thorough reading of the judgement of the Kerala High Court which illustrates the details, so without knowing and considering these facts, one cannot conclude anything about this case.

Only after due consideration of these facts and circumstances in this case, did the court order the girl to go to her parents’ house as they are the natural guardian, and not Sainaba, who attempted to deceive the court. The court also declared the marriage to Jahan void, and ordered the Director General of Police to investigate the matter, as well as ordering a departmental enquiry on the erring Deputy Superintendent of Police who was originally tasked with the investigation.

Many commentators have done a very superficial reading of the judgement of the Kerala High Court with a predetermined ideological standpoint. This article is example of one such reading. The article fails to mention any of the material facts of the case, and has been purely written to selectively cite the judgement to further a particular narrative. It has adopted a condescending tone towards the judgement, and has dismissed almost all of the observations of the judges of the High Court, without a second consideration.

Apart from that, I would not even dare to mention this article which is riddled with factual inaccuracies and selectivity, obviously in furtherance of a particular narrative.

Articles like these, and many others that appeared in the mainstream media failed to capture the full background of the case which led to Shefin Jahan filing a petition in the Supreme Court against the judgement of the Kerala High Court, and the apex court ordering a full investigation by NIA.

It is apparent from the orders issued by the Supreme Court on Jahan’s petition on 4 August 2017 and 10 August 2017 that the NIA, which was the fifth respondent in the writ petition filed in the Kerala court, and the sixth respondent in the current case, had requested the court to permit it to conduct an investigation under the National Investigation Agency Act, 2008. It is under the same determination that the Supreme Court allowed in its 10 July order for the NIA to receive from the state police the necessary information, so as to strengthen the facts of the case. At this point, the counsel for the petitioner, Haris Beeran, vehemently opposed the petition, and the court took a hostile view of such opposition by the counsel for the petitioner, stating in its order:

“Mr. Haris Beeran, learned counsel appearing for the petitioner vehemently opposes the prayer made in the I.A. It is contended, that the petitioner may be permitted to file a response to the I.A.. We have not the slightest hesitation in allowing the petitioner to file its response to the I.A. However, we may record, that the impression which is gathered in opposing the 2 instant application is, that the petitioner does not desire the correct and independent view of the controversy to emerge before this Court”

One can then see a change of tactics from the petitioner on the next hearing on 16 August, in which the petitioner, represented by senior counsels Kapil Sibal and Indira Jaising, submitted that the petitioner had no objection to the investigation by the NIA. It is considering this submission that the court ordered that Retired Justice R V Raveendran oversee the investigation. The court also made it clear that the matter in question will only be disposed only after hearing Akhila.

There might be many who maybe taking the view that the actions by the court amount to a “judicial overreach” and violative of the fundamental rights, but they are not considering the facts and circumstances of this particular case, as well as ignoring the context. Kerala is a hotbed for the recruiters of the Islamic State. There is also a pattern to such cases, when a converted Hindu woman claimed in the Kerala High Court that her husband was planning to send her to Syria or Yemen.

All this being so, there is no doubt that the rights of Akhila have been violated, there is no doubt that the court has based its suspicions on the actors behind the scene. The court’s suspicion is no doubt strengthened by the discrepancies in the affidavits filed by the girl and her failure to disclose all material facts in the case. It would not be wrong to conclude that the hand of the court was forced in this particular case.

There are serious questions in this case that need to see the light of the day. Moreover, the investigation is being overseen by a retired judge of the Supreme Court. Rather than questioning and imputing motives over the order of the Supreme Court, it is best if the country welcomes such an order, so that the facts of the case may come out.

Krishna Thannezth is a student of National Law University. He can be reached at krishnathannezth@gmail.com, and here on Facebook and Twitter.

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