Today morning we woke up to the news that the Child Welfare Committee has ordered that Anupama’s child must be brought to Kerala in five days for a DNA test.
However, the process is still overseen by the officials who directly connived to give the baby away for adoption. The family’s criminal acts are still under a very lax, lagging investigation. Anupama’s educational certificates are still in their possession and the police refuses to intervene to restore them to her.
Indeed, the evil that Prof Kannabiran identifies so excellently in this letter must still be fought, until justice is done. Just the return of the child to Kerala cannot replace justice. Anupama suffered tremendous domestic violence, deliberate endangerment, cheating, and illegal custody at the hands of her family. That cannot be papered over,
FOR URGENT AND MOST IMMEDIATE ATTENTION
Sri Pinarayi Vijayan
Hon’ble Chief Minister
Government of Kerala
Professor Kalpana Kannabiran
Respected Sri. Pinarayi Vijayan,
SUB: THE CASE OF KIDNAPPING OF INFANT OF MS. ANUPAMA CHANDRAN
I write to you with a deep sense of dismay over the kidnapping of an infant from the possession of his mother by a member of your party. The inaction of your government in apprehending the accused, registering an FIR and taking all necessary and urgent steps to restore the infant to his mother is cause for serious concern, especially since your government has repeatedly affirmed its total commitment to dignity and personal liberty for women. The failure to walk the talk in this case is a very worrying sign of a gaping chasm between rhetoric and practice.
I quote a newspaper report to point to the direct involvement of the government in this kidnapping: ‘Police sources said the child welfare committee admitted the child was given in adoption. “Quoting (rules), it said it cannot reveal anything about the child given in adoption. It suggested that police should approach State Adoption Research Agency for details. We will proceed to the next step…, based on that reply,’’ said an officer’ (Indian Express, 23 October 2021).
On the very face of it, the case of the kidnapping of the infant born to Ms. Anupama Chandran is an offence under the Indian Penal Code and attracts imprisonment of seven years and fine for the parents of Ms. Anupama. Given the tender age of the infant, the offence of kidnapping is aggravated by the intention to cause grievous hurt and endanger the life of the infant – which is in effect an intention to cause death of the infant, an even more grievous harm and offence. If, as has been alleged, the infant, with the active support and subterfuge of departments functioning under your government, has been put up for adoption without the consent of the biological parents, especially the mother, it is the right to privacy, autonomy, life and dignity of the mother that has been violated by the state. This is a breach of the Constitution bench ruling of the Supreme Court of India in the case of Justice K.S. Puttaswamy vs. Union of India (2017):
‘169. ….. The autonomy of the individual is the ability to make decisions on vital matters of concern to life. Privacy has not been couched as an independent fundamental right. But that does not detract from the constitutional protection afforded to it, once the true nature of privacy and its relationship with those fundamental rights which are expressly protected is understood. Privacy lies across the spectrum of protected freedoms. The guarantee of equality is a guarantee against arbitrary state action. It prevents the state from discriminating between individuals. The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action….’
I urge you to take serious note of my assertion that this is not an ‘internal family matter’ between Ms. Anupama Chandran’s parents and Ms. Anupama. It is an assault by her parents on Ms. Anupama’s right to autonomy and dignity. I draw your kind attention to the words of then CJI, Justice Deepak Misra:
‘The beauty of the Indian Constitution is that it includes “I” “you” and “we”. Such a magnificent, compassionate and monumental document embodies emphatic inclusiveness which has been further nurtured by judicial sensitivity when it has developed the concept of golden triangle of fundamental rights. If we have to apply the parameters of a fundamental right, it is an expression of judicial sensibility which further enhances the beauty of the Constitution as conceived of. In such a situation, the essentiality of the rights of women gets the real requisite space in the living room of individual dignity rather than the space in an annexe to the main building. That is the manifestation of concerned sensitivity. Individual dignity has a sanctified realm in a civilized society. The civility of a civilization earns warmth and respect when it respects more the individuality of a woman. The said concept gets a further accent when a woman is treated with the real spirit of equality with a man. Any system treating a woman with indignity, inequity and inequality or discrimination invites the wrath of the Constitution. Any provision that might have, few decades back, got the stamp of serene approval may have to meet its epitaph with the efflux of time and growing constitutional precepts and progressive perception. A woman cannot be asked to think as a man or as how the society desires. Such a thought is abominable, for it slaughters her core identity…Equality is the governing parameter. All historical perceptions should evaporate and their obituaries be written’ (Joseph Shine vs. Union of India, 2018, Supreme Court, emphasis added).
Hon’ble Justice D.Y. Chandrachud has observed in Joseph Shine that
‘One of the most significant of the battles for equal citizenship in the country has been fought by women. Feminists have overcome seemingly insurmountable barriers to ensure a more egalitarian existence for future generations. However, the quest for equality continues. While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family…with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence’ (emphasis added).
In the same judgment, the Hon’ble Justice Indu Malhotra observes importantly: ‘The right to live with dignity includes the right not to be subjected to public censure and punishment by the State except where absolutely necessary.’ Justice Malhotra also observes, ‘In the context of Article 21, an invasion of privacy by the State must be justified on the basis of a law that is reasonable and valid. Such an invasion must meet a three-fold requirement as set held in Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr.: (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State interest, and (iii) proportionality, which ensures a rational nexus between the object and the means adopted.’
In the light of laws in force in the country, constitutional protections through the writ of habeas corpus, codified criminal procedure in the matter of criminal offences (such as kidnapping of a minor, trespassing, and disposal of minor through deceit, fraud and cheating), and the ruling of the Hon’ble Supreme Court of India in the matter of the fundamental right to privacy, especially for women in an unequal patriarchal society, the Government of Kerala at the highest levels must move to offer full protection, immediate return of the infant to the mother, and reparations to infant and mother who have suffered harm and risk on account of this action. There is also need to discipline party cadre through disciplinary measures for committing grave wrongs of this order, and censure government staff that acted arbitrarily, in a manner overreaching their powers by law. The Government of Kerala at the highest levels must intervene to prosecute the parents of Anupama Chandran for the criminal offence of kidnapping, theft and disposal of infant, and ensure adequate compensation to the victim Anupama and the infant for the harms committed thus far. If the government does not move to protect Anupama Chandran’s rights as an autonomous, rights bearing citizen, it is acting in derogation of the fundamental right to privacy and is acting in contempt of the Supreme Court of India her demand for that autonomy – in the matter of her relationship by choice and in the matter of her decision to give birth to a child – must be protected at all costs by government and courts alike. Please reinstate constitutional morality and issue an unequivocal statement delegitimizing public morality and gross public disrespect to women.
I urge you to kindly act in good faith and demonstrate the commitment of your government to the young women of Kerala. It is your voice of constitutional reason and constitutional commitment that the young women of Kerala now need to hear, above all the cacophony of traditional and conservative misogyny.
Looking forward to a positive and pro-active response from your good self.
Professor Kalpana Kannabiran
Campaigner for Women’s Rights