- Apprentice Lawyer
After spending more than five months under house arrest, the Supreme Court today provided temporary reprieve to Hadiya and ordered that she will be free to complete her house surgeoncy from Salem.
The hearing, which transpired in the Court of Chief Justice of India, was nothing short of eventful as even the judges on the Bench admitted that they have never comes across such a case during their judicial career.
Below is full account of the hearing that took place in Supreme Court today .
Hadiya arrives at the Supreme Court amidst tight security.
Shyam Divan begins arguments for Hadiya’s father, Asokan, who is the first respondent in the case. Divan’s arguments were on the application for in-camera hearing.
He states four grounds in support of his contention for in-camera hearing.
His first contention was that while Hadiya’s views on the matter are well-known, since material has been unearthed which shows “tremendous organisation support and a well-oiled machinery”, the Bench might have to ask probing questions to Hadiya, which is best done in an atmosphere which is more private. Secondly, he argues that there is a communally charged atmosphere – certain questions and answers could be such that it could flare up sentiments.
His third argument hinged on an audio recording by one Abdul Rashid, who has links with the Popular Front of India, making an attempt to call to arms. Divan’s next ground was that a sting operation by India Today on Sainaba and Satya Sarani revealed a well-oiled machinery to convert person in the guise of cultural organisation. Citing the above, Divan prays for an in-camera hearing.
Additional Solicitor General Maninder Singh, appearing for National Investigation Agency, commences his arguments. Singh states that the investigation report of NIA had critical findings which “demolishes the entire case of this man”. He argues that if it is a case of indoctrination, he would like to argue on whether this interaction with Hadiya will be meaningful or not. He also submitted that at least seven cases were brought to the notice of NIA by Kerala Police which involved Satya Sarani.
“It is an extremely serious issue. Your Lordships will have to determine what indoctrination means; the conduct of a person is getting programmed. She will say that she converted without any coercion because she has been indoctrinated. Your Lordships will have to determine this larger issue before deciding this individual case.”
Senior Advocate Kapil Sibal appearing for Hadiya objects.
“I can give a communal response to this communal argument. I am saddened that instead of going straight to the point and asking the adult what she wants, this is being allowed [to happen].”
Sibal also goes on to question the relevance of the audio recording cited by Shyam Divan asking,
“Who is this person? Who recorded it? Whose voice it is it? How is it relevant to this case? Why is it being put here? Why do you want to communalise the State of Kerala?”
Sibal then proceeds to question the applicability of parens patriae stating:
“Let us forget everything. The lady has a right to be free. Parens Patriae is only with respect to children and lunatics”
Sibal then trashes NIA Report leading to a brief exchange with Maninder Singh.
“We have seen NIA today taking U-turns with respect to every prosecution”, Sibal said to which Maninder Singh responded by saying,
“That was during your time”
“You are the representative of the Government”, was Sibal’s reply.
Sibal then proceeds to state that Hadiya should first be heard in open court and if the Bench, then, wants to talk to her in chamber, it could do so.
The Bench intervenes for the first time. Justice DY Chandrachud proceeds to ask a question which could have a significant bearing on similar issues in the future.
“Let us forget this case for a moment. My question is at what stage can a Court venture into whether an autonomy of an individual can be probed. What should be the threshold for the Court to step in?”
Sibal replies saying that there should be compelling circumstances supported by very strong material.
“Otherwise every other case like this will lead to such probe and it will lead to an outrage in this country.
Even if we assume that a woman wrongly decided to marry someone, can the court interfere in every such marriage. Umpteen marriages end in break-up. But who are they to decide whom a lady should marry”, Sibal said.
“Their contention is that the individual has lost her decisional autonomy through indoctrination and hence court can interfere though she is not a minor”, said Chandrachud J.
“Then investigate the husband, not the individual and her autonomy. Talk to her and get a prima facie idea about her state of mind. If Your Lordships think there is something wrong then look into evidence”, was Sibal’s response.
Maninder Singh intervenes by saying that there is compelling material available to prove their case.
“I agree that compelling material must be shown. I am showing such material now”
Chandrachud J. responds to that by stating that the Bench is interested in determining the parameters for dealing with such cases and the threshold to be crossed for Courts to interfere.
Chief Justice of India Dipak Misra then joins the debate.
“What should we do first? Should we get into dialogue with the lady first or should we examine the material”?
Shyam Divan replies by stating that though he agrees with Sibal on the importance of personal autonomy, the court in this case should look into the material first as even Kerala High Court had heard the matter for months before passing its judgment.
“Kerala High Court heard this matter for many months before passing its judgment. Its judgment is well-supported by the materials produced. While I agree with Sibal on the importance of personal autonomy, there should be a hearing on material produced before the Court interacts with the woman.”
4: 10 pm
Sibal says that it would be unfair to them because they will not be in a position to respond.
“How can I respond to an NIA report? To what will I respond? Then Your Lordships can take a decision without hearing us.”
Senior advocate Indira Jaising also joins in stating that the “woman has a voice of her own and had she been a man, this kind of treatment would not have been meted out to her”.
Chandrachud J. does not receive Sibal’s submissions warmly.
“Your freedom gives you the liberty not to assist us. But we are sworn by our oath not to abdicate our duty” was Justice Chandrachud’s response.
Misra J. and Chandrachud J. then agreed that they have never come across such a case in their judicial career.
Sibal goes on to state that he is neither concerned with her marriage nor the right to live with her husband.
“I am on her autonomy and liberty. She cannot be held in custody like this”.
Discussion on personal autonomy continues with Shyam Divan stating that
“while personal autonomy is important, our criminal law responds to radicalisation. In a pluralist society like ours, can extreme radicalisation be allowed. The High Court has tried to look behind the curtain to find out who is behind this, who is funding this”.
Chandrachud J., however asks when law can intervene.
“Law can intervene only when an individual is about to commit a crime”.
Divan’s response was that in a pluralist society, law should intervene even before a crime is committed when there is intolerance towards other communities.
Court seeks the stance of Kerala government on whether to interact with Hadiya first or go into the material produced by NIA.
Senior Advocate V Giri appearing for Kerala responds that the Court should first look into the material before proceeding with the matter.
Sibal then proceeds to quote another Kerala High Court judgment of inter-religious marriage wherein the Court has observed all marriages should not be viewed with communal angle so as to cause disturbance in the society.
“The moment I start arguing about the seven cases [against Satya Sarani], indoctrination etc., things will get communal.
This is not preventive detention. This is unlawful custody. She has not committed any crime. If I [husband] have committed any crime, investigate me. But why interfere with the woman’s liberty?”
Judges go into discussion mode.
Bench and Hadiya finally
One hour and forty-five minutes into the hearing, the Bench finally relents and beckons Hadiya to come forward. Confusion ensues on whether she can understand English. It is made known to the court that while she can understand English she cannot reply in English. Senior Advocate V Giri is entrusted with translating Hadiya’s responses.
Chandrachud J. then proceeds to asks a series of questions on her schooling, college life and professional ambitions.
The key question comes when Chandrachud J. asks her whether she has any dreams for the future. Hadiya immediately responds by saying that she wants freedom.
Chandrachud J. then tells her that she must have the ability to stand on her own legs.
“While growing up, we all know that we will have to stand on our own feet. Our parents won’t take care of us forever. So, you must have the ability to stand on your own feet.”
Hadiya’s answer is that she would like to complete her house surgeoncy from her Homeopathy college in Salem while staying true to her faith.
She further, states that her parents had objected to her conversion and compelled her to return to her original faith and that was the reason she chose to stay away from them.
She also goes on to state that she should be given the consideration extended to a human being and be relieved of her unlawful custody, five months under the unlawful custody of High Court and six months under her parents. She also expresses her desire to meet her husband.
The Court proceeds to discuss the appointment of a local guardian for her at Salem but Hadiya turns that down saying that her husband could be her local guardian.
“But husband cannot stay in the hostel. Also, I don’t think husband can be a local guardian for a wife. At least I don’t think I am”, said Chandrachud J. evoking laughs in the court room.
Hadiya then requests that she be allowed to go to Malappuram district to visit her friend but the Court refuses to accede to that.
5: 15 pm
Court dictates order
Noting that Hadiya has expressed her desire to complete house surgeoncy to become a homeopathic doctor, the Court directs Sivaraj Homeopathic Medical College, Salem to allow her a facility of room/ hostel for continuing her house surgeoncy.
“In the above view, we direct, as desired by her, that she be taken to Salem so as to enable her to pursue her internship/housemanship. We also direct the college to admit her and to 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. Be it stated, she herself has stated that the duration of the internship/housemanship is likely to be for 11 months. If any formality is to be complied with, the college shall communicate with the university and the university shall accede to the same”
The Court also directed that,
“Our direction has to be followed in letter and spirit. She shall be treated like any other student and be guided by hostel rules. The Dean of the college shall apprise the court in case there is any problem”.
The Court also directs Kerala government to make arrangement for her journey to Salem while agreeing that police woman accompanying her shall be in civil clothes.
The Court also makes it clear that the NIA probe will continue.
“We make it clear that the NIA investigation shall continue in accordance with law.”
The Court directs that the case shall be listed again in the third week of January, 2018.
Read the order below.