Overarching Application of Article 21 over Article 226- A Supreme Court Case Analysis

20th July'22


“A society which perceives women as pure and an embodiment of virtue have no qualms of subjecting them to virulent attack. As an embodiment of virtue, society expects the women to be a mute spectator to and even accepting of egregious discrimination within the home.” –

                                                           Justice DY Chandrachud

Freedom and liberty have occasionally faced misconceptions among the general populace and within judicial courts. In the Constitution of India, the provision for the freedom of life and liberty is explicitly outlined under Article 21. Despite being framed in the negative, indicating an intolerance and restriction towards any infringement upon an individual’s freedom, it mandates the State to safeguard the interests of its citizens directly. However, the historical patriarchal structure of our society has posed challenges to the preservation of this freedom, creating a deep-rooted impact on our societal foundations.While significant progress has been made over the years, traces of this patriarchal influence continue to manifest, whether consciously or unconsciously, in various aspects of our lives. Judicial institutions in our country have played a pivotal role in safeguarding the right to life and liberty as a constitutional guarantee. The judiciary, particularly the Supreme Court, has consistently demonstrated an open-minded approach, seizing opportunities to provide a broad and expansive interpretation of this fundamental right.A noteworthy instance of the judiciary’s commitment to upholding personal life and liberty is evident in the landmark judgment of Shafin Jahan v. Asokan KM & Ors.[1]. This case revolves around the Kerala High Court’s erroneous judgment influenced by societal norms, wherein it extended its jurisdiction under Article 226 to exercise the doctrine of parens patriae. The Supreme Court, in its ruling, overturned the Kerala High Court’s decision, affirming the validity of a legal and consensual marriage between adults and categorizing it as an integral component of the fundamental right to personal life and liberty. This case exemplifies the judiciary’s role in expanding the scope of this freedom and ensuring its protection against societal biases.

Brief Facts of the Case

The case centers around a young woman named Akhila, aged 24, who is the only daughter of KM Asokan. In 2010, Akhila applied for admission to the Sivaraj Homoeopathic Medical College & Research Institute in Salem, Tamil Nadu. She befriended two Muslim sisters during her time there, marking her first acquaintance with the Muslim community. Over the next two years, Akhila developed a profound interest in Islam, questioning and exploring its principles. Influenced by her childhood experiences of occasional conflicts between her atheist father and devout Hindu mother, Akhila found clarity and less dispute in Islam, leading her to consider converting.In 2015, she made her initial attempt to convert to Islam, obtaining an affidavit attested by an advocate in Kochi, Kerala. By 2016, she distanced herself from her family’s Hindu rituals and urged her parents to embrace Islam. Subsequently, she left her family’s home to live with her Muslim friends, accompanied by another affidavit affirming her choice. In 2017, Akhila’s father filed the first writ of habeas corpus in the High Court to produce her. Although the writ was dismissed when she appeared before the court, she refused to return with her parents. Renamed Hadiya, she continued to pursue Islamic studies at an institute and expressed her intention to marry. Concerned about potential ties to radicalization, her father filed a fresh writ alleging a plan to take her to Syria to support the Islamic State. The court ordered her to stay at the college hostel in Kochi.During the legal proceedings, Hadiya married a Muslim man, Shafin Jahan. However, the court refused to acknowledge the marriage and placed her in closed custody at her parents’ home, forbidding any contact with Shafin. Ultimately, the Kerala High Court annulled the marriage, expressing the view that a 24-year-old woman is “weak and vulnerable, capable of being exploited in many ways.” Subsequently, she was placed under house arrest with her parents. Shafin Jahan filed a special leave petition challenging the High Court’s order.

The issues raised before the Supreme Court were:

1.Did the High Court exceed the limits of its jurisdiction by issuing a declaration annulling the marriage between Shafin Jahan and Hadiya during the hearing of a habeas corpus petition?

2.Does exercising jurisdiction to declare the marriage null and void while entertaining a petition for habeas corpus constitute an excess of judicial power under Article 226 of the Constitution?

The rationale behind the Judgment

In addressing the issues raised, the Supreme Court provided the following clarifications:Regarding the first issue, the Court emphasized that enforcing a writ of habeas corpus is intended to safeguard the liberty of individuals, a right guaranteed by the Constitution. The Court’s role is to release individuals from any unlawful restraint and ascertain their independent choice, particularly if the detention is deemed illegal. The expression of choice is deeply embedded in the fundamental rights enshrined under Articles 19 and 21 of the Constitution. Therefore, the Court’s inquiry and determination become redundant if an individual’s freedom of choice does not contravene any legal provisions.The Court affirmed that a habeas corpus petition does not pertain to marital status and stressed that this case was not an exception. Parental love and concern should not override the right of choice of an adult in matters of marriage. Moreover, the Court cautioned against allowing social radicalization to supersede rational thinking. The exercise of the writ of habeas corpus does not infringe upon the constitutional guarantee of freedom. The scope of the habeas corpus writ is limited, and any other matters fall outside its jurisdiction.

Obiter Dicta

An additional aspect considered, although not raised as an issue, was the application of the parens patriae doctrine by the Kerala High Court. This doctrine grants the State the authority to intervene and act as a parent for any child or vulnerable individual in cases of negligence or abuse. It is primarily a supervisory jurisdiction and extends to the courts in exceptional circumstances to serve the ends of justice. The court highlighted that while a marriage can be dissolved at the parties’ request, the High Court, exercising its jurisdiction under Article 226, should not have annulled the marriage.The court emphasized that neither the State nor the law has the right to dictate the choice of partners or limit an individual’s decision-making regarding matters of faith or marriage. Such decisions are intrinsic to personal liberty, guaranteed under the Constitution. The High Court, by delving into the question of the suitability of a person in a marriage, ventured into prohibited territory. The court clarified that social approval for personal decisions should not be the determining factor for recognizing them. In protecting personal liberty, the Constitution shields individuals from unconventional social constructs. Consequently, the Supreme Court declared the annulment of the marriage to be beyond the jurisdiction of the High Court and nullified the decision.

Dissenting but Concurring Judgment

Dr. D.Y. Chandrachud, in the present case, issued a dissenting but concurring judgment alongside two other judges on the bench. He expressed concerns about paternalism reflected in the judgment, particularly in exercising the doctrine of parens patriae, which is typically applied in cases involving a lack of free will assertion. Dr. Chandrachud argued that the jurisdiction of parens patriae should not extend to determining the status of a marital tie, as such decisions should remain the exclusive prerogative of the individuals involved.He highlighted the potential negative impact of public spectacles involving a harsh exercise of State power, emphasizing that such displays could inhibit the exercise of freedom by others in the same environment. Dr. Chandrachud stressed the importance of freedom and liberty, asserting that fear can stifle freedom, making it destructive.Dr. Chandrachud argued that whether Hadiya chose to marry Shafin Jahan was irrelevant to the outcome of the habeas corpus petition. In his view, the central issue was whether she was in illegal confinement. Even if she had chosen not to marry him, the habeas corpus petition would have been concluded once it was established that she was not illegally confined and wished to pursue her endeavors. He underscored that the fact that she decided to get married during the proceedings should not have had any bearing on the habeas corpus petition’s outcome, as it had no constitutional relevance.

Judgment (Majority)

In the aforementioned case, the Supreme Court upheld the freedom of choice and safeguarded the rights guaranteed by the Constitution. Constitutional courts bear the responsibility of preserving the sanctity of the Constitution in both its letter and spirit. The Constitution explicitly mandates the State to protect the rights of its citizens, with Article 21 adopting a restrictive approach to prevent any interference, whether by the State or any other individual, in an individual’s freedom and liberty. The Constitution’s overarching theme is to protect individuals’ dignity, as articulated in the preamble. While the duty of upholding dignity ultimately rests with the State, the State mustn’t violate an individual’s right to life and personal liberty. As a facilitator of citizens’ legal rights, the State should refrain from exercising paternalism and not dictate what constitutes a just way of life or an individual’s correct course of living. Individuals possess absolute autonomy over their lives. The supremacy of Article 21 over Article 226 is evident in various ways within the Constitution. Firstly, Constitutional Courts are tasked with protecting Part III of the Constitution of India and fundamental rights, with Article 21 being particularly privileged and not even subject to suspension during emergencies. This underscores its indispensability for individual dignity. Secondly, the rights implicitly covered under Article 21 have always existed in society. The Supreme Court merely recognizes and interprets them to explicitly protect them under the law. In the case, the Supreme Court successfully incorporated the right to marriage within the purview of freedom of life and liberty, recognizing and safeguarding the freedom of choice in marriage.


Petitioner contentions

Advocate Shyam Divan represented Hadiya’s father, KM Ashokan, in the court case. He argued that they needed to investigate the people and forces influencing Hadiya. He believed organizational solid support was involved, so some probing was necessary, and the proceedings should be private.He expressed concern about the highly charged atmosphere in Kerala and feared threats to Hadiya if the hearing was open to the public. He requested the court to reconsider holding a public hearing.Advocate Divan claimed that the High Court had the power to annul marriages if they were a deception or a means to obstruct justice. He referred to the concept of “Marriage Fraud,” where the state could intervene in marriages of convenience to protect individuals. In this case, he argued that Hadiya’s marriage was a ploy to remove her from the High Court’s protection and take her out of the country.He pointed out that Hadiya had sought guardianship from Ms. Sainaba, who had been involved in similar cases where she acted as a guardian and then arranged marriages. Divan emphasized that this was a unique and exceptional case involving individuals associated with the Popular Front of India (PFI), whom he accused of radicalization.Divan alleged that Hadiya’s marriage was hurriedly arranged when they learned she was going to a hostel for further studies. He also accused Hadiya’s husband of communicating with someone associated with ISIS.In simpler terms, Advocate Divan argued that the court should investigate the people influencing Hadiya. The marriage might have been a deception, and Hadiya’s safety was a concern. He also said that Hadiya sought guardianship from someone involved in similar cases. The case involved allegations of radicalization by a group called PFI, and Hadiya’s husband was accused of connections with ISIS.

Defendant arguments

Mr. Kapil Sibal, representing Mr. Shafin Jahan, made a brief argument that a habeas corpus petition is meant for cases of wrongful confinement and does not apply to marriage annulment. He emphasized the importance of Hadiya’s statement, stating that it matters more than the National Investigation Agency’s (NIA) views. Sibal expressed concern for Hadiya’s autonomy and believed that her statement should be taken in an open court, allowing her to decide freely.Regarding Advocate Divan’s arguments, Sibal expressed sadness at using divisive language. He questioned the relevance of communication in Hadiya’s case, stating that she had been with her parents for eight months without contact with others. He emphasized that Hadiya is an adult with the right to make her own decisions, and being in custody makes it difficult for anyone to be brainwashed.Sibal questioned the court’s decision to call Hadiya from Kerala if they would not hear her out. Dushyant Dave, representing Shafin Jahan, argued that the current petition should be dismissed based on res judicata, as the Kerala High Court had previously rejected a habeas corpus plea. Dave urged the court to consider the broader issue of “Love Jihad” separately and focus solely on the petitioner and his wife’s case, emphasizing that Hadiya is a consenting adult in the marriage.

State Arguments (NIA):

Mr. Maninder Singh, the Additional Solicitor General representing the NIA, briefly intervened in the case, focusing on the limited point of the NIA investigation. He argued that a broader hearing on indoctrination and its impact was necessary, asserting that the Supreme Court, through an open court interaction, could not conclusively determine whether a person had been brainwashed. He characterized indoctrination as a psychological phenomenon resulting from kidnapping involving individual autonomy and referred to it as ‘neuro-linguistic programming.’

In response, the bench questioned the NIA, asking whether the more significant issue of indoctrination should be delinked from the specific case of Hadiya’s marriage. The bench further inquired about the stage at which the court could suspend personal liberty. Mr. Singh continued to argue that Hadiya’s marriage was a ploy to obstruct the proceedings, and he urged the court to recognize this design. He brought up the annulment of the marriage by the Kerala High Court, stating that it relied on five other decisions. Chief Justice Dipak Misra interjected, questioning whether the court could annul a marriage involving an adult unless the person was of unsound mind. He emphasized that even in cases of indoctrination, consent should not be considered valid. Mr. Singh argued that investigations had revealed instances of people being trained in hypnotics, and he urged the court to review the NIA findings before delivering the judgment, emphasizing that the investigation had been conducted based on the court’s orders. He highlighted two key points from the investigations: firstly, in many cases, Ms. Sainaba had claimed custody of the girl, and secondly, she had orchestrated the marriage to keep the matter outside the court’s jurisdiction.


The case, commonly known as the Hadiya case, stands as a landmark judgment in the annals of the Supreme Court, underscoring its commitment to safeguarding individual rights and upholding the sanctity of the Constitution. The Constitution has vested significant powers in the judiciary, designating them as protectors of the law. However, these powers are not to be wielded at the expense of individual rights.The right to marry a person of choice is deemed integral to Article 21 of the Constitution. Liberty, as a fundamental right, ensures that individuals have the autonomy to make decisions central to pursuing their happiness. The ability of each person to choose their life partner is inherent in this right. Moreover, an individual’s beliefs and faith form the core of constitutional liberty, with society having no authority to dictate their faith or choices in partnership matters.The judgment in this case sets a crucial precedent against the prevailing structuralism in society. While the court continues to pursue ancillary matters through investigative agencies, it is explicitly prohibited from delving into the realm of the marriage itself. This distinction reinforces the court’s commitment to protecting individual liberties and ensuring that personal choices remain beyond the purview of external interference, especially in matters as significant as marriage.