Privacy of girl in Kerala Love Jihad case when she is made to appear in open court


In Kerala Love Jihad case, yesterday on 30 October 2017, the Supreme Court directed that the Kerala girl Akhila @ Hadiya (who is supposed to be a victim of Love Jihad) should remain present in the Supreme Court at 3.00 P.M. on 27.11.2017. The Supreme Court further directed that:

“We may further add that this Court shall speak to her not in camera but in open Court.”

A copy of the Supreme Court order can be seen at the end of this article.

Thus, the Supreme Court specifically said that it would speak to the Kerala girl in the open court and not “in-camera”. Media reports suggest that a request was made by the counsel for the girl’s father K.M. Asokan to hold the hearing in camera. But, the court said that it would hear the girl in open court and not in-camera.

It is also pertinent to point out that in a previous order dated 16 August 2017 (this order can also be seen at the bottom of this article), the Supreme Court had stated that:

“We make it clear to the parties, that before hearing the matter finally on merits, this Court shall require the presence of the concerned girl, namely, Akhila, the daughter of respondent no.1, and will speak to her in camera before taking a final decision.” [Emphasis supplied by me.]

So, while in its previous order, the Supreme Court wanted to speak to the girl in camera, but now the Supreme Court says that it would not speak to her in camera but in the open court!! It may be pointed out that Justice D.Y. Chandrachud has been a member of both the Supreme Court benches which passed these two different orders.

It is also noteworthy that in between these two orders, recently on 24 August 2017, a 9-judge bench of the Supreme Court [in the case of Justice K.S. Puttaswamy (Retd) v. Union of India] declared privacy to be a fundamental right. The liberals have been celebrating this judgment. But, what about the privacy of this Kerala girl? Will she be forced in speak in open court about her personal relationships?

Is it not strange that prior to this privacy judgment, the Supreme Court wanted to hear this Kerala girl in camera, but after this privacy judgment it wants to hear her in open court, even though meanwhile privacy has been declared as a fundamental right!!!

It is also ironical that the author of the leading decision of 4 judges in the above 9-judge privacy judgment, i.e., Justice D.Y. Chandrachud, is a member of the 3-judge bench that gave the above order in the Kerala Love Jihad case (other judges being Chief Justice Dipak Misra and Justice A.M. Khanwilkar).

It is noteworthy that family courts have been set up under the Family Courts Act, 1984, to deal with cases arising out of family-related matters. Section 11 of this Act mandates “in-camera” proceedings if either party so desires:

11. Proceedings to be held in camera.—In every suit or proceedings to which this Act applies, the proceedings may be held in camera if the Family Court so desires and shall be so held if either party so desires.”

In fact, even under the Hindu Marriage Act, 1955, Section 22 mandates that every proceeding under that Act must be conduced in camera.

Similarly, Section 33 of the Special Marriage Act, 1954, also mandates that all proceedings under that Act shall be conducted in camera.

Akhila’s case is basically related to annulment of her marriage with Shafin Jahan on the ground that she was forcibly converted to Islam and the complaint in this regard was filed by Akhila’s father K.M. Asokan.

So, while this whole case is being heard in open court in the Supreme Court, at least the production of the girl could have been in-camera to ensure her privacy.

It is noteworthy that this is the same judiciary which had directed that the name of a retired Supreme Court judge (who is now heading a tribunal), who was facing molestation charges from a girl, shall not be discussed in media due to privacy etc. etc. etc.; and that SC judge molestation case has not been heard for last about 3 years. What about the privacy of this Kerala girl, then?

The saving grace (if at all) is that when the court said that it would not hear the girl “in-camera”, it merely said that it would hear her in “open court” and did not further specifically say that it would hear her “on camera”, i.e., live on video / TV. However, “open court” would also imply “on camera” even if it is not specifically mentioned, in view of the wide publicity that this case has got. So, you can expect live coverage of her statement before the Supreme Court on 27 November, even if her audio-visuals inside court would not be telecast live.

Is the 9-judge privacy judgment meant only for the liberals who have the liberty to challenge things like Aadhaar number in the name of privacy in order to stall the economic policies of the Government or in order to jeopardize the national security (as in the case of linking of Aadhaar number with mobile phone SIM card)? Is this privacy judgment not meant for the real cases in which the privacy of a girl would be compromised, and more so, when statutes specifically provide for in camera proceedings?

[Disclosure: I am the counsel who had argued the case on behalf of Lokniti Foundation, in which the Supreme Court had on 06.02.2017 directed linking of Aadhaar numbers with mobile SIM cards.]

Supreme Court order dated 30 November 2017 in the Kerala Love Juhad case is reproduced below:

Supreme Court order dated 16 August 2017 in the Kerala Love Juhad case is reproduced below:

About Dr. Ashok Dhamija

Dr. Ashok DhamijaDr. Ashok Dhamija is a New Delhi based Supreme Court Advocate, holds Ph.D. in Constitutional Law, is author of 3 law books, and is an ex-IPS officer. He is the founder of this law portal. Read more by clicking here. List of his articles. List of his Forum Replies. List of his Quora Answers. List of his YouTube Videos.

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