The Supreme Court on Monday recorded the consent given by Hadiya alias Akhila to return to her college at Salem in Tamil Nadu and directed the college to allot her a hostel room where she can stay and complete her 11-month internship to become a homeopath.
“You have any dream for the future?” Justice D.Y. Chandrachud asked Hadiya. "Freedom, release!" 25-year-old Hadiya replied.
This brief exchange was part of a prolonged interaction, mostly with Justice Chandrachud, covering a range of topics about Hadiya's education and college life. Justice Chandrachud found that she liked watching movies on her friend's laptop in the rented house she shared with five other college mates; she was closest to her father; she made frequent trips to her native Vaikom in Kerala to visit her parents and cousins; and that she wanted “to live as a good citizen, but true to her faith.” "Our living true to our faith does not come into conflict with one being a worthy citizen... You can have your faith and be a good doctor,” Justice Chandrachud agreed.
Consider me a human being
Finally, when the emphasis came on whether she wanted to return to her studies, Hadiya replied in Malayalam that “Absolutely. But first I must be considered a human being.” She said she was kept in “unlawful custody” for 11 months. While the judges asked her questions in English, she replied in Malayalam, which senior advocate V. Giri translated for the Bench. When Chief Justice of India Dipak Misra asked her whether she wanted a local guardian in Salem during her 11-month internship, Hadiya chose Shafin Jahan, who she had allegedly married after converting to Islam.
Wife is no chattel
“Please tell her a husband cannot be his wife's guardian. A wife is no chattel. She is an individual with her own mind and talents... You [Hadiya] must have the ability to stand up on your own feet and live a life of dignity,” Justice Chandrachud admonished her gently. The court took her out of the custody of her father, Asokan K.M., and ordered the Kerala Police to escort her back to college. The college was directed to provide her a hostel room where she would stay during the duration of her course. She would follow the hostel rules like any other inmate. The court ordered that the dean of the college would apply to the apex court in case there are any problems. These problems do not include her studies and admission. The court posted the case for hearing in the third week of January 2018. It kept open issues like NIA investigation and her alleged marriage. But the three-hour long hearing initially saw an unsure Bench grappling with the issue. The judges appeared uncertain whether they should at all interact with Hadiya, who had travelled from Kerala and stood a few feet away from them. She was escorted into the courtroom by a posse, with her parents alongside, moments before the judges had assembled. Mr. Jahan was spotted in the visitors' gallery at the back. During the first hour, the judges seemed to be wrestling with the issue whether they should first interact with Hadiya or peruse the material produced by the National Investigation Agency (NIA), allegedly showing that she was indoctrinated and the narrative that she and Shafin Jahan met through a website was “totally false.”
What will come first?
“What will come first? Should we first have the dialogue with the adult [Hadiya] and then go on to judge whether there was any kind of indoctrination or involuntariness involved. Or is it vice versa?” the Chief Justice asked. Submissions made by Additional Solicitor General Maninder Singh that the Hadiya's is among the 11 cases the NIA is currently probing on radicalisation in Kerala weighed heavily on the court's mind at that point of time. Mr. Singh rejected the idea of a court interacting with a “programmed” individual to glean consent. “Even in case of indoctrination, I am not sure that the law and courts can intervene against a person's right to free choice... unless, the person is about to commit a crime,” Justice Chandrachud responded to Mr. Singh. Senior advocate Shyam Divan appearing for Hadiya's father said, in extreme cases like radicalisation, the courts across the world have intervened in the “pre-crime” stage.
Not a totalitarian society
“We are not living in a totalitarian society,” Justice Chandrachud shot back. Mr. Divan produced transcripts of alleged online interactions between Mr. Jahan and an ISIS recruiter abroad where money was discussed in dollars for recruitments. He said Mr. Jahan was a “stooge, a pawn” for the radical Popular Front of India in Kerala. He wanted an in-camera hearing. Justice Chandrachud objected to the submission, saying “the sanctity of a marital relationship does not depend on the worth of a spouse.” Even Kerala, represented by Mr. Giri, suggested that the court should look into the NIA material first.
Senior advocates Kapil Sibal and Indira Jaising, along with advocate Haris Beeran, said the court should not set a precedent by considering the NIA material without talking to Hadiya first. It would impact every case in the future where a Muslim marries a Hindu, he said. “You [the Bench] called here to ask her about her consent as an adult. Why don't you go straight ahead and ask her first what she wants,” Mr. Sibal submitted. He said the case before the court was not about radicalisation in Kerala or Popular Front of India or Hadiya's conversion or marriage, but the autonomy of an adult to decide her own life with dignity. “The sole issue of autonomy of an adult should not be given a communal colour,” Mr. Sibal said.
Finally, adjournment
Vexed, the court suggested an adjournment till Tuesday to reflect on the issue. However, advocate P.V. Dinesh, appearing for Kerala State Women's Commission, entered the fray. “This lady has been standing here for over an hour. She understands English. She is a doctor. She has been called several names by those here. It will be now unfair, if she is not given a chance to speak for herself,” Mr. Dinesh told the court. It was after this Hadiya was asked by the Chief Justice to come forward to have her say.
