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Analysis on Shafin Jahan v K.M Ashokan and role of right to privacy

The dilemma of identity is a foremost alarm for man. Being the same we have come across with an idea of associating with something greater than us. God is the one who is above all, superior, divine not a human being. The public having same idea of God approaching together started following the similar custom and beliefs. The freedom of religion does not inferto each individual can ensure whatever he feels under the veil of the religion. Constitution of India provides restrictions on the litheness of religion.

The purpose behind is not to abuse the profitability of the rights of the religion. India is considered as the land of philosophy, devoutness and the origin of development, was a natal place of different religious conviction. Religion is a particular system of theories, belief and adoration. The religion is a set of faith and belief which is held by group of people. There is a different religion and a piece individual follows different beliefs and imposts.

Interview of Shafin Jahanv. K.M Ashok an case, where a Hindu women named Hidaya convert herself to Islam religion, upon this her father criticized that she had been ‘indoctrinated' into embracing Islam and alsoa victim of a movement to convert Hindu women to another religion and fear to transfer them to other country. It was consenting marriage between two and her conversion to Islamwas of her own choice and will. Taking in to the account, we can conclude that the subject matter here is no tone religion tall. But it is one of the women's freedom of choice and religion, human rights and also to protect personal freedom.

INTRODUCTION
Freedom of choice is an idea that is absolutely central to majority better life which is not a new one. The significance of the quality of life of the people of society in considering the accomplishment to free religious rules, it is quite easy to perceive the consequence of freedom of

choice to religious appraisal and valuation. Freedom of choice and religion is a modern idea and a formal concept. Freedoms to protect the right of the people and aid them to take choices pretense serious problems applied to persons of lessened ability. There is hierarchy of means where we can characteristic freedoms to such people. Laissez-faire is basically an idea where the law should not intervene in the affairs of individuals.

Freedom provides protection to choose that make their importance debatable. Freedom may have different values for different individuals, whereas the values of other kinds of rights seem to remain constant for all applicants. Freedom of speech protects both the choice to speak and choice to be silent.1The state can forbid open exercise of religion rather than commanding piety.2
Right to Freedom of choice which have alternative decisions and situations, generally, without considering the precise preferences of the decision makers.

The power of making decisions to get rid of preference difficulties to link freedom of choice with power and from this we will arrive at responsibilities. The guarantee of freedom values as a way of self expressions, self realizationsandself accomplishment. The constitution guarantees the free exercise of religion. Strictly balanced choice is not the legacy of religious faith.

FACTS OF THE CASE
WithaccordancetothecaseofShafinJahanv.K.MAshokan3,wheretheHinduwomannamed Akhila Ashokan who embraced herself to Islamic religionofherownchoiceandwillandgot married to Shafin Jahan at the age twenty five years and changed her name as Hadiya Jahan. Her father K.M Ashokan filed a writ petition in High Court of Kerala. He alleged that Hadiya

has been deceived and forced to turn into a Muslim. Her father also alleged that Shafin Jahan had linked to extremist Muslim organizations to be used as a sex slave or a human bomb and apprehended that Hadiya would apt to be moved out of the India. All through the High Court Hadiya perpetuated that her marriage and her conversion to Islam was of her own choice. An Affidavit was filed by his daughter expressively pronouncing her marriage with Shafin Jahan and her conversion to Islam. She asserted in front of the High Court that her conversion to Islam was her faith of choice.

The impugned decision of the High Court an order to annulling the nuptialconsidering it as sham providing that the nuptial is of no importance in the code of law. The grounds behind the High Court judgement, in view of the fact that marriage is one of the most essential decisions in life, can also betaken only with the active involvement of her parents.Togiveher in marriage and to act as a guardian is not the right of her husband.

The High Courtexercising Parens Patriae4jurisdiction observed the responsibility is caste on it to make sure the security of the girls who are brought it. The responsibility can merely be exercise by certifying that parentsmustbegiventhe custody of Ms.Akhila. The authoritytoaffirm the marriage nulland void, to entertain the Habeas Corpus petition, is manifestly in excess of legalauthority. The Supreme Court in the view of the Parens Patriae hegemony of the High Court to annulling the marriage in exercise of is held beyond jurisdiction. In the petition of Habeas Corpus of major girl, appears before the court state a fact that she is not under any illegal restrictions or confinement, the role of the High Court's ends there. The question relating to whether she is marriedbyconversionofherownreligionorchoice,whetherthemarriagewas valid or not would consider irrelevant to annulment of marriage and consider it as ‘sham', would be an offence of habeas corpus jurisdiction.

The constitution of India administer women srighttomarryapersonofownchoice'instituted in the inherent part of Article 21. It states that every individual has a complete freedom to choose life partner of any faith, belief, religion, caste etc. The state, law not even society can behest choice of partner.

The right to choice cannot withdrawal except by the law which is extensively fair, just and reasonable. In the present case state intervenes and supported the cause of Hidaya's father who file petition of Habeas Corpus against the daughter's choice of marriage with the person of different religion and faith. The state also supported father attitude patriarchal autocracy which has an effect on others exercise of freedoms and liberties for fear which may have affect free exercise of choice.

ARTICLE 25 OF INDIAN CONSTITUTION
If we go back in history, between 1930 to 1940, there were many princely states that had implemented anti-conversion law. According to Indian constitution, every citizen has a right to profess religion of his or her own choice.

But, our Constitution does not allow forceful conversions. As per the Article 25 and many judgments by the court, forceful conversions are complete ban in India. Subsequently, after independence, Indian government provided ‘anti- conversion bill' three times before the Lok Sabha. These bills were argued in 1954, 1960 and 1979 and it could not be approved due to the reasons. Orissa, in 1986 passed the law which was shadowed by Madhya Pradesh.

Consider it was confronted before Supreme Court. Ant- conversion laws have been adopted in several states like Rajasthan, Gujarat, Arunachal Pradesh, Tamil Nadu, Himachal Pradesh and Jharkhand shadowed the suit. Some of the states got the bill enacted. The anti-conversion bill is no threat to the minorities, people should not fear it. The bill will be discussed in the parliament and if requires the Supreme Court will take

care of every individual of the country. The Constitution of India provides right of equality, freedom of speech and right of choice which will not be limited through the bill. The aim of the bill is to restraint forceful conversion. There are several instances, where known personalities like a singer changed to other religion but there is no manner and cry. They converted as per their will and own choice and we respect their choice and decision.

There is a need to know the dimensions of free religionin India. If someone ask me to elucidate religion in a sentence –‘we are a free people with a free will, and a free conscience, and free intelligence. No one can force anyone to convert. When the entire world hated Jews,wehailed them with open arms. This is our culture and it has been this way all these while. The dogma ofthegovernmentistorunthe country withamoralcode of conduct. Prime Minister Narendra Modi is succeeding the same path. Caste system, which is fundamental part of Hindu religion, creates so much negativity, externality in society. It does not allow inter-caste marriage and inter-religious marriage. Since last six years we have seen, there is a direct attack on our kitchen, attack on our choices to have food and now there will be an attack on our choice, on whom tomarry.

A marriage can be dissolved at the request of the party in the law court. Marital status is grant through directive and custom. Law has maintained the valid conditions for marriage as perthe ‘Marriage Acts'. It guarantees the set right when relationship runs assure. The privation of marital status is the issue of serious consequence. The law may dictate the valid conditions of the marriage as it may act the situation where a matrimonial tie can be null and void.

To continue the marital status of relationship deciding the best on whether they should accept each other, therearetreatmentsavailabletopartiesofmarriage. There is no role of society in shaping the choice of partners. Intimate personal decisions of social approval are not the basis of recognizing the partners. The own freedom from disapprobation the publicis protected by

Constitution. We can choose to live, be a happy person, whatever the circumstances are, the choice is ours.

LAW V RELIGION
The thought of all religion is lop-sided in character in India. In our country, public from every religion has a hitch with person who practices any other religion.Article 18 of the Universal DeclarationofHumanRightsstatesfreedomofreligionapprovedin1947-48,assertsthateach and every individual has authority to choose the faith or belief that suits his sense of right and wrong. This particular idea is establish clearly by the Supreme Court in the matter of Hadiya. The major contention was that can the state agencies prevent with the choice of the individual topreferhisownfaith.

The Supreme Court had comedownhardonthemannerwhere the High Court of Kerelatreatedthematter. AWritofHabeas Corpuswasturnedintoadeclarationthat the marriage withher Muslim husband was void. The Supreme Court also decisively mentioned that individual has a right to choose his faith and state has no right to interfere. So the outright prohibitionistotallyoutofsubject.

Itwillbeunlawfulandagainstthe willofthecivilisedidea ofthefreedomofreligion.KanhaiyalalMunshiandSardarVallabhbhaiPatelaskedtoholdonly the affirmative aspect of conversions and to leave it to the legislatures to decide to make alaw to avert forcible conversions. So, forcible conversions can never be a part of the Fundamental Right. In the case of Fr.Reverend Stanislaus5the Supreme Court held that our Constitution gives the freedom of sense of right and wrong to profess and propagate religious conviction. The court had to review legislations conceded by Orissa and Madhya Pradesh to prevent “forcefulconversions”.ThewordProfessandpropagatenotonlymeanstobelieveinit,but

also to put that faith into practice. Propagate would essentially mean that one can also communicate or pass on your thought procedure to others. But the transmission of the thought cannot be mean in a way as to persuade fear, so that they become victims of false propaganda and they compensate their original faith.

NO RELIGION TEACHES TO BRING ANOTHER RELIGION DOWN
According to the case of Lily Thomas v. Union of India6, the Supreme Court held that the fundamental right of an individual to “entertain such religious beliefs as a person to chooses”, theauthorityto“declarehisreligiousbeliefsandideas”shallnotcontravenethe“religiousright and personal liberty and freedom of others”.The law should not be used in such a manner that it hasalarmingresult on the free speech and free expression was also upheld in a previous decision of a Bench of three judges in S Khushboo v Kanniammal7. In Navtej Singh Johar V UnionofIndia8,constitutiondivisionbenchpartlystrikebehindSection377oftheIndianPenal Code (IPC), while holding it is "clearly not only crazed and unclear but also has alarming up shot on an individual's freedom of choice."The right "not to believe" is also a replication of an individual's choice, and provisions such as Section 295A, which is crazed, have a chilling outcome on thischoice.

Article 25 provides each and every individual to exercise freedom of any faith or belief of hispower to choice. Freedom of religion includes freedom from religion as well. Thus, every person has the autonomy of having have faith in the religious values of any particular cult or else denomination. There is no bar in the establishing or making of a group of people with differentreligiousbeliefswithinareligiousdenomination.TheHinduMarriageAct,1955gave adversedefinitiontothetermHindubystatingthatanypersonwhoisnotaMuslim,Christian,

Jew,Parsietc.beconsideredasHindu.WiththeprovisoofRatilalPanachandGandhiv.State of Bombay9, (1954) the Supreme Court stated that "fundamental right has specified to every individual to entertain such religious beliefs as a person to chooses may be accepted by his judgment or freedom of conscience and religious." Therefore, the Constitution of Indiaassureliberty of religion and acknowledge the individual's independence to have a belief systemorfreedomofreligionofherownchoice.Ifotherindividualfollowsalikebeliefsystem, they may proclaim it as a right of a new different religion. State or law must not interfere with thisindividualfreedom.Nofundamentalrightsaredependentontheconstitutionalrecognition.
The highest court of India has given legitimacy to those who believe in the "one nation, one religion" slogan.

LAISSEZ FAIRE COMPARISON
Laissez faire is the most protective liberty and dignity for all individual despite of age or capacity for choice. It says that every individual must empower all freedoms in equivalent gauge. The term, laissez faire originates from the place of individual integrity and liberty. Freedom is an end itself is an inference. It means a person to be able to choose better that whatischosenisthe independentofthewisdom. As the freedom of importance, the laissez faire situation based on individual integrity need no special regulations for people who arenot able to choose wisely. It presents an inside rational assert on behalf of equivalent freedom for all but it is both unfair and unreasonable. The conclusion was that legal incompetent should have individual dignity as competent adults. In such cases like Cohen v California10, Roe v Wade11it was held that freedom of choice is the basic decision of one's lifer especting marriage, divorce, procreation, contraception and the children and the upbringing of children andStanleyvGeorgia12statesthatprivilegeofchoosingfreelyischerishedforitsinfluenceto individual fruitful happiness. They have faith in liberty as the covert of contentment and audacity is the covert of freedom.The line concluded by Deepak Mishra in the Hidaya's case wasthattherole of the courtis to see the person heldin custodyis presented before it. Finding about his/her free choice and the person is free from illegal confinement. In the case of Ummu Sabeena v. State of Kerela13, where the song of liberty is sung with honesty and the choice of the individual appropriately respected and discussed its reverence status as the importance guarantees.

In the matter of Bellotti v. Baird, in whicha woman denied to abort as choice may hurt a loss far more significant.14If freedom comprises the forming of balanced choices, its intelligent isometrics stress practice.

The knowledge is on the main of manner of modifying freedom for people whom the validations for individualism do not compass. In accordance to the influential beginning, the right to live free of choice perhaps depends upon the ability of choice, but attaining the ability to choose also depends on the use of one's right and power. Thus, we can validate the attribution of freedom by not presenting the ability of choice since the singular change into a developed and healthy person in large portion on before the gratitude of freedoms.

This Part sustains that, in which the individual is not too competent or the choices are important to threat non-interference of an individual. The surrogate approach to lawful freedoms also aid in evaluating the legal treatment of uncontested custody measures following divorce.

RIGHT TO PROTECTION OF LIFE AND PERSONAL LIBERTY
As per constitution of India, Article 21 is vital where the country can successfully inclined in the direction of the specified aim of formation of a culture based on belief that every person is equal and deserve one and the same constitutional rights and privileges. People should get the same or be treated the same or be treated as equals in some respect. The Supreme Court has grant and define the scope of this right so that it could be empty idealism that has been converted into a judicially recognized element of the right to personal liberty.

The pronouncements of the true to life in personal liberty which have been classified according to the nature and the level of legal sanction a right is influenced of. In the case of UnniKrishnan15,it was first recognized that article 21 is a core of Fundamental Rights and it has prolonged the scope of article 21 by perceiving that life includes right of persons to life with human dignity and personal liberty includes right to choice to all persons.

HADIYA IS UNDER ILLEGAL DETENTION
Hadiya is illegally restrained of her freedom established under Article 21 of the Indian Constitution. The father of Hadiya didn't let her leave home with Shafin Jahan, her husband. Constitutional bench of the honorable court opined that the purpose of writ petition of Habeas Corpus is to provide safety of release of an individual who is illegally confined of one's liberty16.

That while dealing with writ of Habeas Corpus, the role of the court is to check that the person is free from unlawful restrained. It is significant to note that Hadiya is a major and she has expressed her desire to go with Shafin, her husband. The deprivation of marriage of Hadiya is violation of complete right of an individual to choose life partner and right to privacy underArticle21ofIndianConstitution.Nostateoranylawcanorderthechoiceofpartnersor restrain the freedom of any person to choose in subject matter of marriage. In the case of K.S

Puttuswamy 17, the honorable court in division of bench said that the capacity to make decision related to problems close to one's life is an enviable part of individual personality. The incident of individual freedom,underArticle16 of Universal Declaration of Human Rights emphasizes on fundamental significance of marriage. The guarantee of “free exercise of religion” means that there are no restrictions on the exercise of free religion in accordance to the order of morality, or on the expression of free religious ideas, saves people from imposing under the power of police, against “acts inimical to the peace, good order and morals of society”.

In the facts of Lata Singh v State of U.P18, where the Supreme Court provided support of a women's right to choose. The petitioner, Lata Singh when she left her home to get married a man outside of her religion. Another case of Gian Deviv. Supritendent Nari Niketan 19, it was held thatthere is novalid ground for the petitioner detention in Nari Niketan against her choice.

Subsequently, the petitioner has stated explicitly that she does not want to know in Nari Niketan ,her detention cannot be held to be in accordance with law. it directs that petitioner be set at freedom. There is no particular privation that attaining the age of majority has its own importance in an individual's personal life. He/she is authorized to make his/her own choice so long as choice remnant, the courts cannot undertake the role of super guardian.

As the law permits Hadiya is entitled to enjoy her right of freedom of religion, law must not undertake the part of a Parens Patriae being carried by the soppiness of the mother or egoism of the father.

CONCLUSION
The restriction of any state or of the public authority the law cannot be discriminated among the person in religious matter; and the public authority is not to make inquiries or take sign of freedom of belief or expression defines as the resident to perform duty towards the State and to the equals. It was also held that laws are made for the governmental actions, while they cannot intervene with basic spiritual belief and opinion, “they may with practices”.

While sustaining the constitutionality of the law, though it was in conflict with the religious teachings, a distinction was made between the provinces of belief from that of action. In Cantwell v Connecticut 20, it was held that the Exercise of Free Religion clause holds two main aspects-  freedom to hold belief and freedom to act upon it.
The “free exercise of religion” has been interpreted to involve three concepts:

  1. Freedom of religious belief;
  2. Freedom of practice;
  3. Freedom of propagation of religious views.

It thus protects not only religious belief and speech, but also conduct though the latter is subject to State regulation, to be mentioned presently). The acceptance of individual identity is the free choice in accordance with act.

The constitutionality guaranteed freedoms are above than the social values and morals. The liberty is constitutional as well as human right. The freedom which is entrenched in choice of faith is not permissible. Choosing a faith is a substratum of individuality and the right of choice becomes a shadow. The belief and freedom of choice of an individual are important for the construction of the right.

The woman converted herself to Islam. She then met a Muslim Man Shafin Jahan and married him at the age of twenty-five. Right to protection of life and personal liberty is an expression which includes right to carry on various such functions and behavior sufficient to give expression to human self.

The right to privacy not only includes protection from unannounced incursion on one's personal life but also such other things freedom from the choice of parents in education, the woman's right on what occur to her own body in conditions of choice in order to have an abortion. The freedom of speech and expression includes the freedom of child to choose the means of instructions cannot be excluded for the reason that they have no right impose rational restrictions on this freedomofchildforthatpurposethanthosespecifiedunderArticle19(2)oftheConstitution

End-Notes:

  1. Wooley v. Maynard, 430 U.S. 705 (i977); West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
  2. Torcasov.Watkins,367U.S.488(ig6i).Toagreatdegree,thefreedomtobeirreligiousisindependentlysecured by the establishment clause.
  3. 2018 SC 343
  4. The term ‘Parents Patriae' create the state concern for the children who are dependent and stated its ability to take children way from their natural parents if there is need of the circumstances (Gross berg 2002)
  5. 1977 AIR 908
  6. 2013 (7 SCC653)
  7. (2010) 5 SCC600
  8. WRIT PETITION (CLR no 76 of 2016)
  9. 1953 AIR BOM 242
  10. 403 U.S 15(1971)
  11. 410 U.S 113 (1973)
  12. 394 U.S 557 (1969)
  13. (2011) 10 SCC 781
  14. 443 U.S. 622, 642, 643 n.23 (1979) (opinion of PowellJ)
  15. 1955 AIR 781
  16. Kanu Sanyal v District Magistrate, Darjeeling & Ors. AIR 1954 SC 510.
  17. WRIT PETITION (CIVIL .NO . 494 OF 2012)
  18. 2006 5 SCC 475
  19. Delhi (1976) 3 SCC 234
  20. 128. A.L.R .1352 of India. In Doe v. Bolton 21case, it is said that the right to privacy means freedom of choice is the basic decision of one's life respecting marriage, divorce, procreation, protection, contraception.
  21. 410 US 179 1972

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