Right to Convert is a Fundamental Right
- The 61-pagejudgment published by the Supreme Court in the case of Hadiya entails that ‘Right to Convert’ is fundamental right of choice.
- The Supreme Court held that a person’s right to choose a religion and marry is an intrinsic part of her meaningful existence. Neither the State nor “patriarchal supremacy” can interfere in her decision.
BACKGROUND OF THE CONTROVERSIAL JUDGEMENT
- In the bizarre case of Hadiya, she converted to Islam and got married to a Muslim man. On 24th May 2017, the Kerala High Court annulled the marriage of Hadiya and Shafin Jahan.
- Her father has filed a petition before Kerala High Court as he claimed that she was allegedly coerced into adopting Islam as her religion and might be trafficked to Syria.
- The Kerala High Court, after admitting the petition filed by her father, granted Hadiya’s custody to her parents.
- The High Court had called the marriage a “sham” and referred to it as “love jihad”.
- India’s top court finally heard Hadiya. She told a three-judge bench of Supreme Court that she wants her freedom. She does not wish to stay with her father, instead wants to stay with her husband.
- That day, the Supreme Court Bench, in a short order, allowed Ms. Hadiya to re-join Mr. Jahan. Chief Justice Misra said a detailed judgment would follow later in the case which the top judge termed “unique”.
ABOUT THE RECENT JUDGEMENT
- Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. Society has no role to play in determining our choice of partners.
- Chief Justice Misra described the illegal confinement of Ms. Hadiya as the smothering of her liberty.
- The judgment castigates the Kerala government for supporting “patriarchal autocracy”. Chief Justice Misra said the high court decision and her father’s “obstinate” attitude was an attempt to “garrotte her desire to live with the man with whom she has entered into wedlock”.
CONSTITUTIONALITY OF THE JUDGEMENT
- The right to marry in India is part of the right to life as given under Constitution of India.
- The court held that the Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere.
- The Constitution guarantees to each individual the right freely to practice, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme.
India has a diverse culture, and religion and caste are an integral part of our society. Choice of religion is a personal choice of a person. If the society does not allow a person to freely choose his religion, it amounts to a violation of his or her fundamental right as guaranteed under the Constitution of India. Society still frowns on inter-caste marriages. The recent judgment will give a blow to the ancient and rigid structure of the caste system as well as to the social evil.