On the 16th of August, the Supreme Court directed the National Investigation Agency (NIA) to conduct an investigation into the conversion of Akhila Asokan, a 24-year-old Hindu woman, to Islam. As the NIA takes over the investigation and the noise on social media turns into a cacophony, a look at the conspectus of facts is in order.

 Dramatis Personae:

 Akhila Asokan alias Hadiya: A 24-year-old woman and a graduate in Homeopathic Medicine and Surgery (also referred to as ‘child’, ‘ordinary girl of moderate intellectual capacity’, ‘gullible person’ and ‘not a bright student’).

Asokan K.M.: Akhila’s father (also referred to as ‘hapless father’).

Jaseena and Faseena: Akhila’s Muslim flatmates (we are drawn by Asokan’s description of them as the ‘fanatic Muslim sisters’. How can they not be with their rhyming names?)

Aboobacker: Jaseena and Faseena’s father, the reluctant fundamentalist. Reluctant because he refused to help Akhila in order to avoid being dragged into the controversy, fundamentalist because despite his refusal, he had to spend time cooling his heels in custody on a charge of promoting enmity between Hindus and Muslims. He can still be heard muttering “I told you so” under his breath.

Sainaba: A social worker, the President of the National Women’s Front, a member of the All India Muslim Personal Law Board and accused of being the self-appointed ‘guardian’ of Akhila. Her sins include providing shelter to Akhila and bearing her expenses when her ration card showed that she is of very modest means and should neither be able to bear the expenses of another person nor afford the services of good lawyers who were representing her. The court also notes that she seemed to be involved in an earlier case of conversion as well and felt that this shows an ominous pattern emerging. Sainaba is the counsellor working with Satyasarini, an institute that provides religious education and assistance to neo-converts. Pattern, my lords? You don’t say! Obviously, the only pattern in her involvement with another conversion case would have to be something to do with Syria. Or ISIS. Possibly both.

Shafin Jahan: Akhila’s husband (actually her former husband since his marriage to Akhila stands annulled by the High Court; also referred to as ‘stooge’, ‘accused in a criminal case’ and ‘person who has radical inclinations’. His crimes include not updating his relationship status on Facebook after he got married thus proving that the marriage was a sham).

Shafin Jahan’s mother: We do not know her name but we do know that she is ‘already in the Gulf’ where she is obviously waiting to transport Akhila to the Islamic State, because why else would any self-respecting Malayali be in the ‘Gulf’?

SDPI: Otherwise, a political party registered with the Election Commission of India but for purposes of convenience, we shall refer to it and its affiliate PFI as ‘forces acting from behind the curtains’.

Sherin: She helped Akhila in 2015 by getting an affidavit prepared where she gave Akhila the name Aasiya. We don’t know much more about her since, in a serious lapse of investigation derided by the High Court, the Investigating Officer omitted to probe her, her husband’s and her brother’s role (apart from questioning them) even though it found that “There are clear indications that the said persons are persons involved in the study of Muslim religion”. Why on Earth would he not investigate such persons even after discovering this incriminating fact? Tsk, tsk.

The DSP: The Deputy Superintendent of Police, Perinthalmanna is our undisputed hero of this drama. Appointed as the Investigating Officer for this case, the DSP time and again submitted reports saying there was no evidence of coercion in Akhila’s conversion and no criminality in her marriage to Shafin. The poor fellow simply didn’t seem to grasp that this wasn’t what the court wanted. He was repeatedly pulled up in class for his homework being “absolutely perfunctory”. In the end, his report card said that he “has done no investigation worth the name” and “his conduct …leaves a lot to be desired”. The court observed that “either he has been influenced and subjugated into a studied inaction or he lacks alertness and competence”. Ouch! Finally, the court blasted him for not finding evidence of anyone’s guilt and ordered an inquiry into his lapses to be followed up by departmental proceedings against him and ordered a fresh investigation by the DGP. The DSP can be found these days standing on a desk in the Police Headquarters with his hands in the air.

Act – 1: The Background and the First Habeas Corpus

On January 7, 2016, Akhila’s father, Asokan K.M., filed an FIR at the Perinthalmanna Police Station in Malappuram, Kerala saying his daughter had gone missing. Sections dealing with promoting enmity between religious communities and outraging religious feelings of a class were subsequently added to the FIR. Aboobacker, the father of Akhila’s Muslim flatmates, was immediately arrested in connection with this FIR and was remanded to judicial custody.

 On January 12, 2016, Asokan filed a habeas corpus petition before the Kerala High Court. Habeas corpusliterally means “you have the body” and the writ of habeas corpus is a direction from a constitutional court to a State agency to produce the body before the court. Asokan alleged his daughter was being held illegally by certain persons against her wishes with the intention of forcefully converting her to Islam. He prayed for a writ to be issued to the police to secure the production of his daughter before the court. The high court issued notice to the police to apprise the court about the action taken by them on Asokan’s complaint to locate the missing woman.

On January 19, 2016, the missing woman herself filed an application before the court to be heard in the matter and placed her version of facts on affidavit. She also appeared before the court in person. The facts stated by her were as follows. She stated that she is a major and is 24 years old. She is a student of Bachelor of Homeopathic Medicine and Surgery studying in Salem. She has been staying in a rented apartment near the college campus along with five other girls. Two of these girls were sisters and were practicing Muslims. Observing the steadfastness of these two girls in prayer and impressed by their character, she became interested in Islam and started learning about Islam. The tenets of the faith appealed to her and she embraced Islam about three years ago without formally announcing her change of faith. During a period of leave from college, she was forced by her family to participate in Hindu rites and rituals relating to the funeral of her grandfather which made her uncomfortable and so she decided to announce her change of faith. She approached the family of her flatmates for help with the formal conversion and also asked for a place to stay. Her flatmates’ father, Aboobacker, tried to find her place in a school of religious learning but being unable to do so, declined to keep her in his house. (In hindsight, his disinclination to stick his neck out was not ill-founded as he was later arrested for his role in the alleged forced conversion as mentioned earlier.)

Akhila returned to college and for the first time, went to campus wearing a headscarf. On seeing this, one of her friends immediately telephoned her parents. She received a call from her mother soon thereafter saying that her father has met with an accident and she should return home immediately. Knowing this to be a ploy, she went to Jaseena and Faseena’s house again where, expressing his continued unwillingness to house her, their father referred her to Satyasarini, an institution for Islamic learning, which in turn referred her to Sainaba, a counsellor working with the institute, who was a social worker and chairperson of the local Gram Sabha as well as the secretary of the National Women’s Front. Sainaba offered to house her temporarily.

In its interim order dated January 19, 2016, the high court noted that when interacted with, Akhila gave responses perfectly in tune with her affidavit. It further observed that it was clear that she wanted to join Satyasarini and was not willing in any manner to return to her parental home. The court, noting that she has the liberty to take her own decisions, permitted her to join Satyasarini as she desired and allowed her to stay with Sainaba till final orders were passed in the case.

By a well-reasoned judicial order dated January 25, 2016, the high court finally disposed of the petition noting that no ground existed for issuance of a writ of habeas corpus as the court was convinced that Akhila was not under any illegal confinement. The court noted that she has obtained admission in Satyasarini and is staying in the hostel there of her own wish and will. Her parents were allowed to visit her subject to timings and regulations of the institute. While the concept of res judicata (a restriction on re-agitating an issue that has already been finally decided by a competent court) does not apply to a habeas corpus action, however, the following findings were given by the high court and attained finality as they were not appealed against – (a) Akila had converted to Islam of her own free will; and (b) she had the court’s express permission to join Satyasarini to pursue religious studies.

 Act – 2: Apprehensions of ‘sheep rearing in Syria’ and the second habeas corpus

Soon after the completion of Akhila’s’ course in Islamic studies from Satyasarini as permitted by the high court, Asokan once again approached the Kerala High Court in August 2016 with another habeas corpus petition, this time alleging that his daughter was being taken away to Syria to join ISIS. In the petition, he made sweeping allegations against Satyasarini as well as the National Women’s Front and its affiliate bodies, SDPI and PFI as being terrorist and anti-national organisations and also arrayed Sainaba as a party. He described his daughter’s Muslim flatmates as the “fanatic Muslim sisters” who along with their father misled, misguided and forced his daughter “to have a totally mistaken inclination towards Islam, being totally ignorant of its evil and inhuman aspects”. He alleged that his daughter was forcibly taken to Satyasarini by these sisters with the connivance of their criminal father for her forced conversion to Islam under threats and was kept in illegal detention at the institute. He claimed that during the hearings of the previous writ petition, his daughter was produced in court accompanied by “a horde of fearsome, burly Islamic style bearded” activists and she parroted the commands of her captors in court out of fear. He painted a colourful picture of institutes of Islamic learning as places where new students and converts were forced to watch live demonstrations of beheadings of dogs and cows so that they would be terrorised into succumbing to the will of their custodians! The gravamen of his allegations was that he had been recording his daily phone conversations with his daughter and one day, she said (without specifying the context in which she said it) that she would go away to Syria to rear sheep. From this, he inferred that she was being taken to Syria to join ISIS and had therefore approached the court. He expressed an apprehension that his daughter might be forced to conduct a “fake marriage” against her wishes to a “Muslim urchin” to divert the attention of the security agencies so she could be transported out of the country. He also alleged that his daughter might be suffering from ‘Stockholm Syndrome’ and so may be bound to her captors by an “unnatural and unreal affinity” and could not be expected to express her “real will and wish”. Despite several of these pleadings being contrary to and even contemptuous of the earlier order of the high court, another bench of the Kerala High Court by its order dated August 17, 2016 issued notice in the matter and directed the respondents to be present before the court.

Thereafter, on August 22, 2016, the high court noted in its order that Akhila had appeared before the court and stated that she does not want to accompany her parents to their home. The order further recorded that her parents were permitted to interact with her in the presence of the judges and she refused to accompany her parents on the ground that they do not accept her as a Muslim. She stated that she has been living in the house of Sainaba. Despite this, the court directed that “in light of the serious allegations made in the petition”, Akhila should not be allowed to reside with Sainaba and should be escorted to SNV Sanadam Hostel, Ernakulam where she would reside till the next date of hearing. No other person other than her parents would be permitted to interact with her. She would not be permitted to have or to use a mobile phone. The DSP in charge of the investigation was asked to probe the antecedents of Sainaba and Satyasarini and place his report before the court.

The DSP recorded the statements of Akhila, Sainaba and some of the other dramatis personae and submitted his report on September 1, 2016. In his report, he clearly states that Akhila has given a statement that she has embraced Islam of her own will and there is no threat or compulsion from anyone. She also stated that she has neither any intention to join ISIS nor any interest in it. The report also records that she does not even have a passport.

On September 27, 2016, the case came up before a different bench from the one hearing the matter. The two honourable judges on the bench interacted with Akhila and her parents and heard counsel on both sides. The court recorded that Akhila has stated in no uncertain terms that she does not wish to go with her parents. It also noted that she does not possess a passport and the police have stated that there is nothing to indicate that she is likely to be taken to Syria. Thereafter, the court decided that in the light of the findings in the earlier habeas corpus case, the court cannot compel Akhila to reside with her parents or direct that she should continue to reside in the hostel she had been sent to by the previous orders. The court therefore permitted her to reside at a place of her choice and recorded that she proposed to reside with Sainaba.

On November 14, 2016, the matter reverted to the bench that had passed the earlier orders. Since Akhila was staying with Sainaba as per the last order of the intervening bench, the court raised questions as to how Sainaba was in a position to financially support Akhila and ordered that both Akhila and Sainaba should file affidavits disclosing their sources of income along with ration card of Sainaba and her husband’s income details as well as documents showing how Akhila was entitled to practice homeopathy, since she claimed she was supporting herself by that means.

On the next date i.e. November 19, 2016, the court expressed its dissatisfaction with Akhila living with Sainaba, “who is a stranger”. The Court also expressed that Akhila should complete her House Surgeoncy without further delay and listed the matter for November 21 when it would pass orders regarding the manner in which Akhila was to be taken to a medical college and admitted to the ladies hostel there.

Act – 3: The Turning Point – Enter the Unwelcome Husband

On December 21, 2016, the next date of hearing, Akhila appeared in Court with her husband, Shafin Jahan and informed the court that they got married on December 19, 2016 according to Muslim rites. This twist in the tale seemed to have attracted the wrath of the judge. The court raised doubts about the antecedents of Shafin and about the entire process of marriage. Akhila’s counsel stated that she was present in court and the court may interact with her to determine whether her marriage was performed under coercion. However, the court did not deem this necessary and recorded that it is “not satisfied that it is necessary to interact with her at present”. The court questioned why no indication of the marriage was given to them beforehand. It noted that her husband Shafin stated before the Court that he is employed in the ‘Gulf’ and desires to take his wife back with him and wondered if this was a device to transport her to Syria. Thereafter, exercising parens patriae jurisdiction, by which courts takes upon themselves the responsibility of protecting children or persons under some disability, the court passed an order directing the police to move Akhila to a hostel, take away her mobile phone and ensure that no one apart from her parents can meet her. The police were also directed to conduct an investigation into the education, family background, antecedents and other details of Shafin and also into the circumstances surrounding the marriage, the persons involved in the conduct of the marriage, the organisation that issued the marriage certificate and all their antecedents.

On multiple occasions after this, the Deputy Superintendent of Police, Perinthalmanna filed reports before the court indicating that nothing untoward was found regarding Shafin or his marriage with Akhila or her conversion. The DSP recorded the statements of Akhila as well as Shafin and found that the statements made and explanations given by them were found credible. The DSP also investigated the criminal antecedents of Shafin and found that he was involved in an FIR relating to assault in 2013. The investigation confirmed that Akhila and Shafin had met through the matrimonial website, waytonikah.com. Akhila had opened an account on the website with the help of Sainaba in April 2016 with the intention of finding someone to marry. She received several proposals and shortlisted a few suitors. In the first week of November, a proposal was received from Shafin Jahan, who spoke with Sainaba’s husband and then with Akhila. Akhila finally decided to marry Shafin after meeting him on November 30, 2016. The investigation confirmed that the marriage was conducted by “Thanveerul Islam Sangham” on December 19 in the presence of around 50 persons including 20 persons from the bridegroom’s side. The DSP verified all relevant details of the Sangham including their registration documents and the entry of Shafin and Akhila’s marriage in its register and also questioned the officials of the Sangham. Despite this, time and again, the court castigated the officer for not delivering what was asked for by the court and insisted on further investigation around the circumstances of the marriage and the criminal antecedents of Shafin. The DSP stated that he could not find anything further by way of criminal antecedents of Shafin but stated that there seemed to be certain discrepancies in the marriage certificate (the Qazi instead of ‘Hadiya @ Akhila d/o Asokan’ wrote ‘Hadiya d/o Akhil Asokan’).

Finally, on May 24, 2017, the court passed final orders in the case allowing the habeas corpus petition and directing the police to escort Akhila to her parents’ house and provide protection and surveillance to her and her parents. The court also annulled the marriage of Akhila and Shafin and directed an investigation into her forced conversion and into the activities of all organisations that had any role to play in the case including by way of providing support. The bench lambasted the Investigating Officer for what it found to be lapses of investigation on his part and ordered an inquiry against him to be followed by departmental proceedings if necessary.

The high court’s findings give an insight into the mind of the learned judge writing the order. After completing her degree of Bachelor of Homeopathic Medicine and Surgery, Akhila, instead of starting with the compulsory medical internship had instead joined Satyasarini to learn about Islam and is only now, after a gap of a year, looking to join a clinic for her internship. Commenting on this, the court observed that Akhila, “abandoned her professional studies to embark upon religious studies, which cannot be accepted as normal human conduct”. The judgment of the high court observes that 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.” With the greatest respect to the learned judge, it appears that she knows exactly what she wants in life but what she wants does not sit well with what His Lordship would have her want.

In parting, the honourable court records that Asokan has stated that he has no objection to Akhila following Islam and carrying on Islamic religious practices in his house, therefore, “Ms. Akhila can have no complaint against her parents”. After he came to court a second time claiming that Akhila “being the daughter of a proud soldier was a steadfast patriot before she was induced to have misguided inclination towards Islam”, it’s a wonder she didn’t say ‘Father, you had me at steadfast patriot’ and go home straightaway.

So how does the court come to exercise parens patriae jurisdiction over an educated adult woman? By chipping away systematically at her ability to take decisions for herself. Here’s how:

§  “In the first place, it is not normal for a young girl in her early 20s, pursuing a professional course, to abandon her studies and to set out in pursuit of learning an alien faith and religion. The normal youth is indifferent towards religion and religious studies. Though the possibility of genuine interest in the study of religion on the part of any person cannot be ruled out, such inclination is in the first place out of the ordinary.” Here’s a brand new definition of “normal”. In a case involving religious conversion, starting with the premise that interest in religion for a young person is abnormal pretty much seals the result at the outset. 

§  “The academic record of Ms. Akhila shows that she was not a bright student. She had failed in all her subjects in the first year. Of course, she cleared all the papers later.” If everyone who wrote repeats and supplementary exams in their first year of college were to lose their ability to take decisions for themselves, most families, nay, entire clans, would be left with one person, if they were lucky, who would take decisions on behalf of all others. Some would have to depend on their neighbours. As for uneducated people, long live parens patriae. But wait, how many judges, bureaucrats and parliamentarians would have written second attempts? Those ones obviously can’t be parens. Or patriae. RTI anyone?

§  The court observed that “she has been made to believe that she would go to hell if she did not accept Islam and is under such a belief. She also appears to be a gullible person.” Of course, the fact that this reasoning would make most of humanity, people of all religious persuasions who believe in Heaven and Hell and a day of judgement, gullible does not appear to have suggested itself to the learned judge.

§  “It is clear from the above that Ms. Akhila was only permitted to reside with the 7^th respondent(Sainaba). Both herself and her husband have abrogated to themselves the role of the guardianship of Ms. Akhila and it is alleged that they have given her in marriage to Mr. Shafin Jahan.” This was the basis on which the court felt that the role of Sainaba and Shafin had to be investigated. The first question that arises is why does a 24-year-old woman require a “guardian” in the first place for anyone to abrogate that role to themselves? And secondly, why does anyone have to “give” her in marriage? Can’t an adult woman be a free agent? In the final order, this was made the basis on which the marriage was annulled by the court – “The 7^th respondent (Sainaba) and her husband had no authority or competence to act as the guardian of Ms. Akhila and to give her in marriage. Therefore, the alleged marriage is null and void. It is declared to be so.”

§  The court found that in assuming the role of the guardian of Akhila, Sainaba and her husband had deprived her parents of this right as they are her “natural guardians”. Again, the concept of guardianship is brought in where it does not belong. The court felt that no one other than the parents would consider her welfare to be of greater importance than her parents would. A long spiel on parenthood follows – “The nature provides numerous examples of even animals taking care of and protecting their progeny sacrificing their very lives for the purpose. The homo sapien is no exception.” And so on.

§  It had come on record that on 10.09.2015, a lady by the name Sherin from Mangalore who had tried to help Akhila had given her the name Aasiya and had prepared an affidavit where she had mentioned this as her new name. Subsequently when Akhila herself filed an affidavit, she changed this to Hadiya. Some of pleadings however spelt her name as Aadiya. Commenting on this, the court observes – “There is confusion regarding her identity. She has even sworn to affidavits before this Court, initially claiming that she was Adhiya and later on as Hadiya. She has also sworn to an affidavit before a Notary stating that her name was Aasiya. It is clear that she does not have a consistent stand even regarding her name.” The fact that she is not the one physically typing these affidavits that are prepared by stenos on dictation does not seem to have suggested itself to the honourable court. Her father Asokan made much of these different spellings before the Supreme Court including an error in the spelling of his name in an affidavit where she was described as “d/o Ashokan”. Based on this, he alleged that her misspelling her name and her father’s name shows that she was a puppet in the hands of strangers. Ironically, in the supporting affidavit to the very counter where he alleges this, he spells his own name as Ashokan instead of Asokan. So either he too is a puppet in someone’s hands or perhaps it is time that the court takes suo motu notice of this problem of stenos who can’t fricking spell and rids lawyers of this scourge once and for all. While we’re on the subject, here are some spelling in the affidavits filed by Asokan – ‘treat’ instead of ‘threat’ (where he alleges that his daughter is under treat round the clock) and ‘conversion’ instead of ‘conversation’ (where he says he recorded his conversion with her; must be confusing, with all this talk of conversion). He also refers to his daughter as “the only fruit of their marital tie”. Just saying. No wonder she doesn’t have rights. She’s a fruit.

§  And finally, it comes tumbling out into the open – “She would be safe only with her parents taking into account the fact that she is a girl aged 24 years.” “A girl aged 24 years is weak and vulnerable, capable of being exploited in many ways. This Court exercising parens patriae jurisdiction is concerned with the welfare of a girl her age.”

§  And this gem, recorded by the same bench in an interim order in this case – “Though the Senior Counsel has vociferously contended that the detenue is a person who has attained majority, it is necessary to bear in mind the fact that the detenue who is a female in her twenties is at a vulnerable age. As per Indian tradition, the custody of an unmarried daughter is with the parents, until she is properly married.” (The emphasis is mine. The brain splattered all over the wall behind me is also mine.)

§  And driving a nail into the dreams of all young dreamy-eyed Romeos and Juliets, the court holds – “Her marriage being the most important decision in her life, can also be taken only with the active involvement of her parents.”

Having thus deprived Akhila of agency, the court then goes on to impose its own value judgment on her decisions to arrive at conclusions that would raise the hackles of anyone who believes in the freshly-mined right of an individual to privacy:

§  In the context that Shafin had been involved in an assault case in his college days, the court observed – “He is also accused in a criminal case. No prudent person would decide to get his daughter married to a person accused in a criminal case.”

§  “We further take note of that fact that Sri. Shafin Jahan’s mother is already in the Gulf. He was working in the Gulf and is desirous of going back. Therefore, left to him, he would have transported Ms. Akhila out of the country… There are reports of girls taken out of the country after such conversions, having become untraceable.” Shafin and his mother work in Muscat. Why else would a Malayali be so far from home in the Arabian Peninsula also known as the “Gulf” or “Gelf” if not to smuggle girls to Syria? Because no Mallu ever goes to the Gulf otherwise. Ever.

§  Cases were cited before the high court where the Supreme Court has upheld that it is the absolute right of a person who has attained majority to choose a religion of his/her own choice and marry whoever they wish, and parents have no right or authority to question her choice. The Supreme Court in Girish v. Radhamony which also emanated from Kerala High Court had deprecated the high court for ordering investigation against the husband in a similar habeas corpus case, saying the jurisdiction of the high court in a habeas corpus action ended when the girl came to court and said she had gone of her own free will. However, the high court distinguished these by saying that – “all the cases relied upon were concerned with girls who had fallen in love with persons belonging to other religions and who wanted to get converted and to live their marital life with the said persons. As we have already noticed above, such a situation does not exist in the present case. Here, the detenue went away from her parents stating that she wanted to become a Muslim alleging that she was attracted to the teachings of the said religion. The said story cannot be believed for the reasons already stated above. In the present state of affairs, it is absolutely unsafe to let Ms. Akhila free to do as she likes.” Because what person in their right mind gets attracted to the teaching of a religion, right? The least you can do to prove that you are normal is to be attracted to a real person. Being drawn to a doctrine or a philosophy is a clear sign that you’re cuckoo. Or hypnotised. Or drugged. Possibly all three.

§  “This is not a case of a girl falling in love with a boy of a different religion and wanting to get married to him. Such situations are common and we are familiar with them. In all such cases, this Court has been consistent in accepting the choice of the girl. However, the case here is different. It is an admitted case that this is an arranged marriage.” News reports have actually done a great injustice by calling this the “Love Jihad Case”. It seems this order would never have come to be passed if there was any love involved. The court simply did not want to encourage this ‘Arranged Marriage Jihad’ lest it start a dangerous new trend.

§  The court also refers to the fact that Shafin, who is “very active on the internet”, did not “disclose” his marriage on Facebook. This is was one of the factors that led the court to the conclusion that Shafin is a mere stooge and the marriage is a sham.

Act – 4: The Supreme Court directs an NIA investigation into what it sees as a pattern of conversions

An appeal was filed in the Supreme Court by Shafin Jahan, her husband (now technically former husband) against the order of the Kerala High Court. While issuing notice in the matter to Asokan, the Supreme Court allowed itself to be dissuaded by the counsel representing him from directing that his daughter be produced in court and agreed to allow his lawyers an opportunity to place material and put forward arguments before the court to show why the court should not interview Akhila to ascertain for itself what her wishes are. To arrive at this preliminary conclusion, Justice Chandrachud read two lines of the findings of the high court, “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”. Based on these, he said a high court has concluded that she is not possessed of her faculties and has no idea of what she wants in life, why should we disbelieve the high court? On the next date, while ordering an NIA investigation, the Supreme Court further deferred calling the woman to be present and said that they will interview her ‘before taking a final decision’.

A question of law that got brushed aside in this process is whether the Supreme Court at all has the power to go beyond the mandate of the National Investigation Agency Act, 2008 and confer jurisdiction where none exists. Under Section 6 of the NIA Act, the NIA is required upon the direction of the Central government to investigate any offence mentioned in the Schedule of the Act. The offences mentioned in the Schedule include crimes which affect national security such as waging war against the State, terrorism, piracy on high seas, aircraft hijacking, counterfeiting currency etc. What role does the NIA have in investigating a case of conversion unless conversion to Islam poses a threat to national security? And if a young woman’s conversion to Islam poses a threat to national security, the corollary is that the ‘nation’ in that sentence is not the secular nation that our founding fathers envisioned but is a new Hindu nation that frowns upon renegades from its fold.

At its highest, the allegation of Asokan that could suggest NIA jurisdiction is that his daughter may be sent to Syria to join ISIS. Firstly, ‘my daughter may become a terrorist’ is not reason enough to set the criminal law into motion, which requires commission of a crime. Section 6 of the NIA Act clearly requires a prima facie case of a scheduled offence for a reference to be made to the NIA. Secondly, Asokan’s apprehension as per his own petition and the arguments of his counsel were based on Akhila telling him that she is being sent to Syria for “sheep rearing” which he suspects is code for something sinister. Asokan who was recording his conversations with his daughter filed a transcript of the conversation to substantiate the allegation. The transcript itself, if anything, shows how much in control the woman actually is. Asokan is evidently goading her to say something controversial that can be used against her. He asks her why she does not visit them. To which, she replies she’s wary of how the RSS people will react and behave around her if she visits. He then asks her pointed questions trying to get her to say she wants to rear goats/sheep. She painstakingly explains that she has no such plans. She says that since Islam asks its followers to emulate the life of the Prophet, she was originally inclined to take up sheep rearing as he was a shepherd. But later, people explained to her that those were different times and exact parallels could not be applied. So she has given up the idea. No reference was made throughout the conversation to Syria or any other country.

The Supreme Court referred to another case of conversion by a girl named Athira in Kerala that was mentioned by the high court in the order under challenge and was also referred to by the counsel for the NIA, and based on this observed that there is a pattern here that needs to be investigated.

There are serious apprehensions in having the NIA, which is under the direct supervision of the BJP government at the Centre, investigate a case of conversion. Conversion is after all a sore point for the BJP and an issue that is used in every election to polarise voters. However, when the counsel for Shafin objected to the ordering of a NIA investigation into what was by no stretch a crime within the jurisdiction of the NIA, the court took umbrage and the then Chief Justice JS Khehar asked the counsel – “Are you doubting the impartiality of the NIA?” The court then passed an order recording the observation – “the impression which is gathered in opposing the instant application is, that the petitioner does not desire the correct and independent view of the controversy to emerge before this Court”. In the Indian legal system, plagued as it is by corruption, prejudice, influence and backlog, the process is the punishment. To ignore these realities is to compromise the right to life and personal liberty guaranteed to every person by the Constitution. The onus is heavy on the Supreme Court to not allow legal processes to be misused in this manner and put an early end to this case in discharge of its duty as the sentinel of fundamental rights under the Constitution.

PS: Of the two honourable judges of the Supreme Court who heard this matter, one, the now former Chief Justice JS Khehar, pronounced a judgement a week later in the Triple Talaq Case holding that the freedom to practice and propagate religion is an absolute right and the other, Justice Chandrachud, authored a judgement in the Privacy Case where he held that there exists an inalienable natural right in every individual to exercise control over his or her personality. Justice Chandrachud holds, “The duty of the state is to safeguard the ability to take decisions – the autonomy of the individual – and not to dictate those decisions.” One can only hope that these rights will be available to Akhila and “show me the man and I will show you the law” will prove to be nothing more than a clichéd adage.

Disclaimer: I am part of the team of lawyers who represent Akhila alias Hadiya before the Supreme Court in this case. Although I have tried to faithfully report findings of the courts and have quoted relevant extracts as far as possible to maintain objectivity, the opinions expressed herein may be filtered for bias accordingly.

The author can be contacted on Twitter @MNizamPasha.