The case of Hadiya has gained national prominence with Monday's Supreme court hearing dominating airtime and digital space. The Supreme court bench consisting of CJI Dipak Mishra, justices AM Khanwilkar, DY Chandrachud had during a previous hearing on October 30 ordered Hadiya to be present for the next hearing on November 27. However on Monday, for two hours there was hectic arguments and the bench didn't direct attention towards Hadiya.
According to a Live Law report, only after some counsel cautioned the bench that Hadiya was a doctor and has her own mind, Justice Chandrachud had a one-on-one conversation with her through senior counsel, V Giri, who functioned as an interpreter from Malayalam to English.
Hadiya is a Kerala woman who had converted to Islam before marrying a Muslim man in an alleged love jihad case
Here are the arguments that took place in court today:
Shyam Divan, representing the father of Hadiya, asked the bench to reconsider its decision not to hold an in-camera hearing. Divan spoke about the very highly communally charged atmosphere in Kerala and warned the bench that there would be some threats to what Hadiya might say in the open court. During the previous hearing, Divan had submitted that there was a well-oiled organisational apparatus operating for carrying out indoctrination. Today he repeated the same argument as to how the well-oiled machine is masquerading as a cult organisation and converting young women.
Additional Solicitor General Maninder Singh, representing the National Investigation Agency (NIA), told the bench that a wider hearing is needed on indoctrination and its impact. “It is psychological, a result of kidnapping, and involves individual autonomy. It is programming, and there deprogrammers (sic)”, he told the court.
Senior counsel Kapil Sibal, representing Hadiya’s husband Shafin Jahan, told the bench that assuming whatever the other side says is true, Hadiya still had a right to say that she is doing things on her own. “She is in custody of her parents, for the past eight months, with no access to anybody else. Why do you want to communalise Kerala, in this fashion?” he asked.
Sibal opposed Divan's plead for in-camera hearing saying he was concerned about her autonomy. “In the national interest, it should be done in the open court. She may decide whatever she wants to decide”, he said. Sibal also told the bench that even if the marriage is a wrong decision, she is entitled to go through it; if there is a break-up, so be it.
Sibal and senior counsel Indira Jaising told the bench to hear what Hadiya had to say. "First talk to her, get prima facie idea about her, see whether there is compelling evidence to conclude. Send her to a medical facility or declare that she is exercising free choice. She is here for that purpose," Sibal told the bench.
Justice Chandrachud said the bench is concerned about the danger of indoctrination, and said, “We are sworn to do our duty”. Sibal then asked why did the bench call Hadiya all the way from Kerala if it was going to decide whether to hear her at all. Indira Jaising asked whether the bench would have doubted Hadiya's faculties if she had been a man rather than a woman. Justice Chandrachud, offended by the remark, responded that the bench treated both genders equally. Many counsel then pointed out to the bench that Hadiya was a doctor and could very well understand what was going on in the court.
After this, Justice Chandrachud had a conversation with Hadiya. Hadiya answered his questions about her qualification, interest in studies, habits, and perception of life. She told the court, " I want freedom". When the CJI asked her whether she wanted to continue studies on the state's expense, Hadiya replied she wanted to study but not on state's expense as her husband could take care of her.
The bench decided that Hadiya would be freed from her parents' custody and directed her to complete her studies. The Bench postponed adjudication of larger issues such as alleged indoctrination to another day.
What the Supreme Court directed:
1) As desired by her, Hadiya should be taken to Salem so as to enable her to pursue her internship/housemanship.
2) The college should admit her and allow the facility of a room or a shared room in the hostel as per practice to enable her to continue her internship/housemanship afresh
3) If any formality is to be complied with, the college shall communicate with the university and the university shall accede to the same
4) When she stays in the hostel, she will be treated like any other student and will be guided by the hostel rules.
5) If necessary, the expenses for pursuing the course and for the hostel shall be borne by the State of Kerala
6) The Dean of the College shall approach the Supreme Court if there is any problem with regard to any aspect. 'Any problem' does not mean admission in the hostel or continuance in the course.
7) State of Kerala should make all necessary arrangements so that she can travel to Salem in Tamil Nadu.
8) The State shall attend to her request that she should be accompanied by policewomen in plainclothes
9) State of Tamil Nadu shall make local arrangements if any security problem arises.
10) She shall be permitted to stay in Kerala Bhawan till she moves to Salem.
11) Court made it clear that the NIA investigation shall continue in accordance with law.