EDITORIALS
If Hadiya Had Been a Man
Public discourse has consistently skirted around the core issues of gender equality and justice.
F
rom Shah Bano and Roop Kanwar in the 1980s to Hadiya
three decades later, some things never seem to change:
the public debate about these women’s private lives is less
about them as individuals and their rights as citizens, and more
about their families and communities, about religion and
politics, tradition and culture.
In 1985, an elderly, indigent, deserted and later divorced
woman’s modest quest for a paltry amount as maintenance
from her lawyer husband was turned into a political hot potato
concerning religious freedom, identity and jurisprudence. In
1987, the gruesome death of an 18-year-old on the funeral pyre
of her husband of just seven months was seized upon by her
community as an opportunity to assert political power on the
back of a long outlawed practice. And now in 2017, with Hadiya,
a young but undeniably adult woman’s constitutionally guaran-
teed freedom of conscience and her right to choose a life part-
ner have become entangled in politically charged anxieties
about religious radicalism, terrorism and national security. At
the heart of each of these instances is the question of women’s
status and rights as citizens. But the public discourse skirts
around the core issues of gender equality and justice.
In Hadiya’s case, the reluctance, if not refusal, to recognise
gender as a central concern was clearly demonstrated during
the hearing in the Supreme Court on 27 November. In October,
the three-member bench had ordered that Hadiya be produced
in court so that they could ascertain whether or not her conver-
sion to Islam and subsequent marriage to Shafin Jahan were
of her own volition. They were then evidently convinced that
it was imperative to hear directly from Hadiya about her
choices and wishes. Yet a month later, after she was brought
before them, the justices appeared to dither over if and when
to listen to her, allowing a prolonged debate on whether or
not she should be allowed to speak for herself. When senior
advocate and former Additional Solicitor General Indira
Jaising finally asked in exasperation whether the bench
would have hesitated so much if Hadiya had been a man rather
than a woman, the judges were clearly annoyed, with the
chief justice actually asking, “How did the gender issue come
in here?”
How can gender not come into a case in which the high
court declared that “a girl aged 24 is weak and vulnerable,
capable of being exploited in many ways,” that it was not safe
to let her be free to decide what she wants in life because she is
a “gullible person,” and that “as per Indian tradition, the
8 decEMBER 2, 2017
custody of an unmarried daughter is with the parents, until
she is properly married?” How can gender not come into a
case that has become a cause célèbre in the campaign against
so-called “love jihad,” launched by organisations belonging
to the Sangh Parivar, which is predicated on women having
no minds of their own, being nothing more than sitting ducks
for being lured into marriage for the sole purpose of religious
conversion? The fact is, of course, that the questionable term
has no relevance in Hadiya’s case because she publicly
expressed her desire to change her religion nearly a year
before she married Jahan and received a formal certificate of
conversion a month before they met online through a Muslim
matrimony website.
How can gender not come into a case in which, despite clearly
and consistently stating her thoughts, feelings and wishes
multiple times over nearly two years—in court and outside
whenever she got the opportunity—she is still not being seen
and treated as an adult who knows what she wants? It is re-
markable that despite being subjected to more or less solitary
confinement for many months, guarded by police, isolated from
everyone except close family and, according to her, subjected to
psychological harassment, she is still so calm, composed, and
crystal clear about what she wants: the freedom to live her own
life as she sees fit.
How can gender not come into a case in which, despite her
unequivocal, expressed desire for freedom and release from the
captivity experienced over the past several months? She was
subjected to a paternalistic sermon about women’s individuality,
independence and dignity—before being told that she would be
granted only partial freedom, to complete the internship re-
quired for her to obtain her degree while living in the hostel run
by the college, guided by hostel rules.
Although the discussion in court about the college dean being
designated her guardian is not reflected in the final order, it is
clear from his statements, and hers, that he will determine what
she can do, where she can go, who she can meet and under what
conditions. However, Hadiya’s father is clearly not happy about
even the highly restricted freedom she has been granted and
has threatened to go to court again. There is, of course, much
more to Hadiya’s case than gender, including the influence of
communal politics, Islamophobia, and the terrorism bogey on
public as well as judicial perceptions of it. Yet it is important not
to lose sight of the fact that Hadiya’s unfortunate predicament
has very much to do with her being a woman.
vol lIi no 48 EPW Economic & Political Weekly