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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 often been misconstrued, not just by the people but also by the judicial courts at times. The Constitution of India provides for the freedom of life and liberty exclusively under Article 21. The Article is negatively framed, which depicts the intolerance and restriction towards any kind of intrusion upon anyone’s freedom. It imposes a mandate upon the State directly to protect the interest of individuals. Despite the mandate and aging of the Article, the freedom of life and liberty has always been compromised. The old patriarchal structure of our society has been taking a toll upon it. We have come a long way since it started, but it is rooted deep in our foundations. Whether consciously or unconsciously, it has surfaced almost everywhere. Our country’s judicial institutions have been protecting this right as a constitutional safeguard. They have widened its scope and given it an extensive approach. The expanded arena of this freedom is owed to the judiciary, especially the Supreme Court. It always kept an open mind and never missed an opportunity to give it a broad interpretation. One such case includes the recent landmark judgment of Shafin Jahan v. Asokan KM &Ors.[1] This famous case relates to the erred Judgment by the Kerala High Court, which was grasped by the societal norms and extended its jurisdiction under Article 226 to exercise the doctrine of parenspatriae. Later, the Supreme Court overruled the Judgment of the Kerala High Court, upheld the validity of a legal and consensual marriage between adults, and included it under the fundamental right of personal life and liberty.

Brief Facts of the Case

The case relates to a girl, Akhila, 24 years old and the only daughter of KM Asokan. In 2010, she applied for admission to a private institute, Sivaraj Homoeopathic Medical College & Research Institute in Salem, Tamil Nadu. There, she became friends with two Muslim sisters. This was the first time Akhila had had some Muslim acquaintance. In the next two years, Akhila developed a keen interest in Islam and even started questioning it. She also observed fast during Ramzan. Her inclination was basically due to her childhood experiences. His father was an atheist, and her mother was a staunch believer in Hinduism; hence there was always an occasional conflict at her house. This inclined her towards the belief in Islam, which appeared clearer and less disputed. She occasionally spoke to her friend’s father to clear her doubts about Islam. In 2015, she made her first attempt to convert to Islam and got an affidavit attested by an advocate in Kochi, Kerala. Eventually, she grew aloof from her family’s rituals and urged her parents to embrace Islam. In 2016, she left her house to live with her Muslim friends. She got another affidavit regarding the same. In 2017, Akhila’s father moved the first writ of habeas corpus in the High Court to produce her daughter. Writ got dismissed when she appeared before the court but refused to go with her parents. Akhila alias Hadiya continued to stay at an institute to learn about Islam. She expressed her intention of marriage to them. On hearing this, his father worried about a few Kerala Muslims leaving to join the Islamic State and their wives. He moved a fresh writ petition in the High Court, alleging that there is a plan to take his daughter to Syria to fight for Islamic State. She was produced before the court but again refused to go with her parents. The court ordered her to stay at the college hostel in Kochi. She then filed an affidavit in court saying she embraced Islam out of her own will. In between court proceedings, she got married to a Muslim boy, Shafin Jahan. The court refused to accept the matrimonial arrangement and sent her back to the home in closed custody. Shafin was forbidden to have any contact with her. Kerala High Court finally annulled the marriage in the final Judgment and quoted, “A girl aged 24 is weak and vulnerable, capable of being exploited in many ways.”[2] And sent her back to her parents, putting her on house arrest. Later, Shafin Jahan moved a special leave petition against the order of the High Court.

Issues in the Present Case

The issues raised before the Supreme Court were:

Did the High Court transgress the limits of its jurisdiction in issuing a declaration annulling the marriage of Shafin Jahan and Hadiya in the course of the hearing of a habeas corpus petition?

Does the exercise of the jurisdiction to declare the marriage null and void while entertaining a petition for habeas corpus in excess of the judicial power under Article 226?

The rationale behind the Judgment

The Supreme Court addressed the issues mentioned above in the present case. The first issue explained that the enforcement of writ is supposed to protect the liberty of people. Liberty is guaranteed to the people by the Constitution. The court is responsible for producing the detenu from any illegal restraint, if any, and asking them about their independent choice in case the detention is not illegal. It clarified that the expression of choice is ingrained in the fundamental rights provided under Article 19 and Article 21. Therefore, if the freedom of choice does not violate any sanction of law, the court’s inquiry and determination are futile. The court settled that the habeas corpus petition in no way accounted for marital status and clarified that this was not an exceptional situation. Parental love and concern can’t be allowed to fluster the right of choice of an adult in the marriage. [3] Social radicalization shouldn’t overcome rational thinking. The exercise of the writ does not conflict with the constitutional guarantee of freedom. The writ of habeas corpus possesses a certain ambit. Anything else is out of the area of its jurisdiction.

Obiter Dicta

Another aspect that was considered, though it was not a matter of issue, was the enforcement of the parenspatriae doctrine by the Kerala High Court. This doctrine gives the power to the State to intervene and act as a parent of any child or vulnerable individual against any negligence or abuse. It is mostly a supervisory jurisdiction. This power extends to the courts in the capacity to meet the ends of justice but only in exceptional circumstances. A marriage can be dissolved at the behest of parties by a competent court of law [4]. The High Court, in the exercise of its jurisdiction under Article 226, shouldn’t have gone to the extent of annulling the marriage. Neither the State nor the law has a right to dictate a choice of partners or limit the choice of any person to decide on matters of faith or marriage. They constitute the essence of personal liberty guaranteed under the Constitution. In deciding whether any person is a suitable fit, the High Court has entered into prohibited terrain. Social approval for personal decisions is not the basis for recognizing them [5]. No wonder the Constitution protects personal liberty by protecting individuals from unusual social constructs. Hence, the Supreme Court declared it to be outside the High Court’s jurisdiction and nullified the marriage annulment decision.

Dissenting but Concurring Judgment

Dr. D.Y. Chandrachud, in the present case, gave a dissenting but concurring judgment with two other judges on the bench. He stated that paternalism is reflected in the Judgment in question. The doctrine of parenspatriae is exercised in the case of non-assertion of free will. The exercise of that jurisdiction should not sweep into determining the status of a marital tie. That decision rests exclusively with the individuals. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom by others in the same milieu [6]. Nothing can be as destructive as freedom and liberty. Fear silences freedom. Whether or not Hadiya chose to marry Shafin Jahan was irrelevant to the outcome of the habeas corpus petition. Even if she were not to be married to him, all that she was required to clarify was whether she was in illegal confinement. If she was not and desired to pursue her endeavors, that was the end of the matter in a habeas corpus petition. The fact that she decided to get married during the pendency of the proceedings had no bearing on the outcome of the habeas corpus petition. Constitutionally, it had no bearing on the outcome.

Judgment (Majority)

The Supreme Court, in the case mentioned above, upheld the freedom of choice and protected the rights guaranteed by the Constitution. The Constitutional courts hold a duty to protect the Constitution’s sanctity in both letter and spirit. The Constitution specifically lays a duty on the State to protect the rights of the citizen. Under Article 21, the restrictive approach has been taken so that no one, be it the State or any other individual, is allowed to interfere in someone’s freedom of liberty. The entire Constitution aims to protect individuals’ dignity, which manifests in the preamble. The duty of conceiving dignity ultimately lies in the State, but the State should ensure that it doesn’t violate an individual’s life and personal liberty. Since the State is expected to facilitate the enjoyment of a citizen’s legal rights, it shouldn’t confer paternalism. It has no jurisdiction to decide what is considered a just way of life or a person’s correct course of living. A person has absolute autonomy over them. The overriding effect of Article 21 over Article 226 manifests in the Constitution in several ways. Firstly, Part III of the Constitution of India is to be protected by the Constitutional Courts. The fundamental rights are generally privileged, and Article 21 is the most elite. It is not even suspended during an emergency. Therefore, it’s indispensable for individual dignity. Secondly, the rights impliedly covered under Article 21 have always existed in society. The Supreme Court just recognizes and construes it in interpreting the freedom of life and liberty so that it can be protected explicitly by the law. Similarly, the freedom of choice of marriage has always existed in society since the Majority age was legalized through the Indian Majority Act but was never expressed in words. Supreme Court, through this case, successfully inhibited the right to marriage inside the purview of freedom of life and liberty.


Petitioner contentions

Advocate Shyam Divan represented Hadiya’s father, KM Ashokan, who presented his application and submitted that “The purpose is to learn from her and the forces behind her. There is tremendous organizational support. Therefore, some degree of interaction and the element of probing is necessary. The atmosphere must be closed,” he told the court. He then said there was a “highly communally charged” atmosphere in Kerala. He said there would be some threats to what she might say in the open court. “Please revisit that decision to hold a public hearing,” he pleaded. He argued that the “High Court had extraordinary plenary jurisdiction under Article 226 and could do ‘complete justice’ as per the facts and circumstances of the case. This marriage was a device to scuttle the court proceedings and interfere with the fair administration of justice. It was a ploy to take Akhila (Hadiya), a ‘vulnerable adult,’ out of the jurisdiction of the High Court that was practicing parenspatriae jurisdiction”.[7]

Justice Chandrachud enquired- “if the court could annul a marriage which was an intimate personal matter between two consenting adults?” Mr. Divan replied in the affirmative. He stated that the ‘Marriage Fraud’ doctrine had been well recognized, and the state could intervene in those marriages with a ‘purpose’ and were ‘marriages of convenience. As this marriage was a ploy to take her out of the protective jurisdiction of the High Court order and traffic her out of the country, the court could intervene. Mr. Divan enquired, “if the court would not interfere even if the marriage were a ruse to derail the administration of justice?” He added that Hadiya had repeatedly sought the guardianship of a stranger, Respondent 7, and now Mr. Shafin, her husband.

Justice Chandrachud wished to clarify if Hadiya had asked for guardianship of Ms. Sainaba (Respondent 7). Mr. Divan replied in the affirmative and added that Ms. Sainaba had been involved “in many such cases” where she first acted as a guardian and “then gets the girl married off.” Mr. Divan persisted that this was an extraordinary case and that the Supreme Court should exercise extraordinary jurisdiction. He reiterated that the facts of this case were unique where Ms. Sainaba and her “Illegal conversion Center,” i.e., Sathya Sarani and Shafin Jahan, were Popular Front of India (PFI) activists who were part of a “well-oiled machinery” aimed at radicalization. He alleged that when they saw Akhila was being sent to a hostel to complete her studies, they got her married immediately and that she had kept her marriage a secret even when the High Court heard the matter. Mr. Divan also charged Mr. Shafin with talking to an ISIS operative about sending an ISIS recruit and presented compilations showing the entire organizational apparatus.

Defendant arguments

Mr. Kapil Sibal, appearing for Mr. Shafin Jahan, put forward a brief argument that “a habeas corpus was only meant for wrongful confinement and annulment of marriage was not within the powers of a writ court.” He told the court, “To know whether she was indoctrinated or not, one has to talk to her. Hadiya’s statement is more important than that of the NIA” Sibal said he was concerned about her autonomy. “In the national interest, it should be done in open court. She may decide whatever she wants to decide,” he said.

Responding to Divan’s argument on communication, he said he was “saddened” by the “expression of venom.” “I can give a communal response to the communal argument,” he said and asked, “What has it got to do with Hadiya?” “She has been in the custody of her parents for the past eight months, with no access to anybody else. Communalization of Kerala is not proper in this fashion,” he asked. He said Hadiya is an adult and entitled to make her decisions. “Indoctrination is difficult in custody,” he asked, reminding the bench that the NIA takes a U-turn in many cases. He said even if the indoctrination story is true, she says she still wants to go. [8]

Sibal then asked, “Why did the bench call Hadiya from Kerala if it was going to decide whether to hear her or not?” Dushyant Dave appearing for Hadiya’s husband Shafin Jahan stated before the court that the present petition would be struck by the doctrine of res judicata for the Kerala High Court has previously dismissed a habeas corpus petition in the given case. Mr. Dave urged the court that the impleadment applications alleging the broader issue of “Love Jihad” quoting incidents from 2013-14 should be considered separately, and the present case should be limited to the cause of the petitioner and his wife. She is a consenting 24-year-old adult in the marriage.

State Arguments (NIA):

Mr. Maninder Singh, Additional Solicitor General, appearing for the NIA, made a brief intervention on the limited point of NIA investigation. He told the bench that a broader hearing on indoctrination and its impact is needed. He said by interacting with her in the open court, the Supreme Court cannot decide whether or not a person has been indoctrinated. “It is psychological, a result of kidnapping, and involves individual autonomy. Such indoctrination is called ‘neuro-linguistic programming,” he told the court. The bench then asked the NIA, “Should we delink the larger issue of indoctrination with the specific case of Hadiya’s marriage? At what stage can the court suspend personal liberty?”[9] Mr. Singh continued that this marriage was also a ploy to obstruct the proceedings, and the court should see through this design. He addressed the issue of annulment of the marriage by the Kerala High Court, stating the same had been done after relying on five other decisions. At this juncture, Chief Justice DipakMisra questioned: “if where the person is an adult, can the court annul the marriage unless the person is of unsound mind.” To this, he added that even in cases of indoctrination, consent would not count, and there were cases where the investigation had revealed people being trained in hypnotics and the present case was one of indoctrination. He urged the court to look into the NIA findings before pronouncing the Judgment, as the investigation had been done on the court’s orders. He said that two things were clear from the investigations – First, in many cases such as this, Ms. Sainaba had intervened to say that the girl was in her custody. Second, she got the girl married to keep the matter out of the court’s jurisdiction.


The case discussed above- popularly known as the Hadiya case, has been a landmark judgment in the history of the Supreme Court where it got to protect the individualistic right of a girl and hence, maintain the sanctity of the Constitution. The judicial institution has been infused with significant powers by the Constitution as they are the protectors of the law. But they are in no way allowed to exploit the individual’s rights. The right to marry a person of choice is integral to Article 21 of the Constitution. Liberty is guaranteed as a fundamental right, and the ability of each individual to make decisions on matters central to the pursuit of their happiness is intrinsic to it. One’s belief and faith are at the core of constitutional liberty, and society has no role in determining their faith or choice of partners. The case sets a precedent against the acute structuralism present in society. Though the court is still pursuing the matters incidental to the case through an investigative agency, they are strictly prohibited from probing into the marriage.


[1] Criminal Appeal No.- 366 / 2018

[2] 2017 2 KLJ 974

[3] Id. at 1

[4] Id.

[5] Id.

[6] Id.

[7] Anwar, Tarique, “Hadiya ‘Love jihad’ case: What exactly happened during frenzied arguments in SC” (28 Nov 2017), News Click (

[8] Id.

[9] Id.

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