Indoctrination requires to be proved by an expert and a consistent pattern of such allegations in inter-faith relationships, as in the case of Hadiya, points to a brewing social prejudice.
The Indian Constitution guarantees both the right to marry a person of choice, as well as the right to practise, propagate one’s religion. It is, therefore, ironical and deeply unfortunate to see the intersection of these two rights, protected under Article 21 and Article 25, with a Hindu woman converting to Islam, or marrying a Muslim man, being politicised as “love jihad.” It is precisely the constitutional bedrock of these two fundamental rights upon which the crucial distinction between what constitutes “indoctrination” and what happens to be mere sociocultural and religious “influence” should be drawn. The article is a sociolegal exploration of these ideas.
In the past year, the term “love jihad” has been used rather liberally across the country to imply that in inter-faith relationships, Hindu women are being forced to convert to Islam under the pretence of love and marriage. The usage of this term reflects not only the rampant Islamophobia spreading across the length and breadth of the country, but also delegitimises a consensual relationship solely on the grounds of it being between a Hindu woman and a Muslim man. Mind you, love jihad doesn’t quite imply a Muslim woman forcibly enticing a Hindu man.
The patriarchal overtones of this phrase and its usage aside, another common factor surfacing in these cases is the allegation of indoctrination, or the so-called intellectual and emotional confusion supposedly suffered by the Hindu woman in these relationships, allegedly leading them to agreeing to marry a Muslim man.
Pattern of Habeas Corpus petitions
The now infamous judgment of the Kerala High Court in the case of Hadiya had forced a 24-year-old woman into the custody of her parents, and annulled her marriage with a Muslim man without any claims of fraud or coercion made by either of the married parties. On a special leave petition (SLP) in the Supreme Court, it was alleged by Hadiya’s father, Asokan, that she was “indoctrinated”. Although, as a part of her affidavit, she testified that she grew curious about Islam after meeting batchmates who practiced Islam while pursuing her education and living in the hostel.
In a similar vein, recently in the Madhya Pradesh High Court, a 27-year-old woman, was apparently “counselled” by the lawyers and the judge to leave her husband, after her parents alleged that she was “confused” about her marriage with the Muslim man. It must be noted that this woman had thrice before that very court pleaded that she wanted to live with her Muslim husband.
A clutch of petitions that follow the very same pattern of insinuating “indoctrination” on the part of the Hindu woman, has come before High Courts across the country, with the majority being reported as in front of Kerala High Court. Other High Courts include those of Rajasthan, and Madhya Pradesh. Contrary to the Kerala High Court’s judgment in Hadiya’s case, in the case of Sruthi, another Kerala High Court bench pulled up the lawyers for using the term “love jihad” all too liberally.
In fact, similar to Hadiya’s, Sruthi’s father had filed a Habeas Corpus petition, and in the first instance she agreed to go with her parents; but in the second petition, she said she wanted to go live with her husband, and testified that she was counselled to move away from Islam, and even tortured at an outfit called Siva Sakthi Yoga Kendra. There have been other reported instances of court battles fought by inter-faith couples, and counselling efforts by such organizations.
In two out of four of these Kerala High Court petitions, the women have testified to have undergone “counselling” to convert back to Hinduism. It is strange that such counselling is never termed as indoctrination, but their conversion to a different religion in the first place is disputed on the same grounds.
Indoctrination, or influence?
In the legal world, indoctrination and brainwashing have been used as a defence to claim mental instability of an accused in an attempt to prove that the accused’s will was no longer theirs. Therefore, the alleged crime had been committed without the person’s free will. The proving of this defense would rely on the expert scientific testimony, which in the United States has been set to be admitted in the court rooms, not as a general acceptance, but with the discretion of the judge and that this testimony both rests on a reliable foundation and is relevant to the task at hand [Daubert v. Merrell Dow Pharmaceuticals 509 U.S. 579 (1993)]
The Indian Evidence Act, 1973 in Section 45 provides for admission of expert evidence in matters of art, science, foreign law, identity, handwriting or finger impressions. The Supreme Court in the case of State of Himachal Pradesh v. Jai Lal (1999 (7) SCC 280), held that an expert evidence is sought from a person who is shown to have a special knowledge on that given subject and the duty of this expert witness is to “furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgment by the application of criteria to the facts proved by the evidence of the case.”
It is pertinent to point out that in the cases of inter faith relationships pointed above, allegations of indoctrination are made, but as the habeas corpus petitions in the High Courts cannot look into matters of facts or evidence under their Article 226 writ jurisdiction, such arguments do not have the jurisdiction to be tested upon by an expert evidence.
In a scholarly article by Frances E. Chapman, Implanted Choice: Is there Room for a Modern Criminal Defense of Brainwashing?(Criminal Law Bulletin, Vol 49, Issue 6, Winter 2013), indoctrination has been defined as: “The forcible indoctrination process designed to induce the subject to abandon existing political, religious, or social beliefs in favour of a rigid system imposed by the indoctrinator” and these beliefs must be imposed through means such as “prolonged confinement, physiological depletion, and deliberate manipulation of guilt, terror, and anxiety.”
It is also distinguished from education in the following terms:
“Brainwashing/Indoctrination versus education: Distinguish brainwashing from education by saying that education teaches “people how to think for themselves in relationship to a variety of material with which the learning process equips them to deal. Thought reform is more accurately defined by the word ‘indoctrination’ in which certain specific ideas and attitudes are inculcated deliberately and without the merits of competitive doctrines being offered.”
If indoctrination is packed as loosely and used as it has been in Indian courtrooms in the past year, it is actually being used to refer to “influence” and not brainwashing and indoctrination as they are understood by the international legal fraternity. Influence does not indicate impairment of free will, but a set of ideologies that shape our belief system politically, or socially. Indoctrination, on the other hand requires to be proved by an expert and a consistent pattern of such claims in inter-faith relationships points to a brewing social prejudice specific in that context.
It is interesting to note here that the counselling conducted with these women to re-convert to Hinduism is, in fact, akin to the internationally accepted definition to indoctrination as given above. It was a deliberate attempt to make them abandon their existing religious beliefs, which in these cases happened to be Islam, and many of these women have described the process of counselling by these outfits as “torture”.
Ignoring women’s autonomy
Especially in Hadiya’s case, she testified that her own spiritual curiosity developed spontaneously when she lived with and observed the batchmates who practised Islam. She learnt about the subject, and converted well before she chose to marry Shafin Jahan, actively searching for a suitable groom through a Muslim matrimonial website. That such proactive decision-making on the part of Hadiya was ignored by the High Court in the garb of indoctrination is not only a travesty of judicial fairness, but also an insult to an adult woman’s autonomy in matters as intimate as choosing a religion and a life partner, both of which are guaranteed as fundamental rights by the Indian Constitution.
In fact, one of the arguments made by the Kerala High Court was that Hadiya did not marry a person she had known from before, but that she met him through an arranged marriage portal. The question that begs to be asked here is: Just how is this process any different from the various websites that specialize in finding eligible brides and grooms of a specific caste or gotra, that is well within the narrow confines of a rigidly-tiered, Hindu rituals of arranging marriages?
The right to marry a person of one’s own choice under Article 21 is not contingent on marrying someone you have known from before. Indoctrination is not equivalent to influence, whatever the source of the said influence. Precisely why, the cases against brave and independent women like Hadiya and Sruthi were not only bogus, they ultimately failed to stand strict judicial scrutiny because they happened to be grave assaults on their fundamental rights.
Nehmat is a Delhi based advocate and currently works for Lawyers Collective.
