“Please try to understand. We have not refused to interact or we have not said we will not. But the stage..when we should do..we have to lay down parameters..its a complex case..I, my brother judges Justice Khanwilkar and Justice Chandrachud have sat in different High Courts too..we have not come across such a case there also..I haven’t …they too agree..This is the first time.so we will proceed cautiously.a bit slowly…please cooperate”, CJI Misra to lawyers appearing for Shafin Jahan when they grew impatient as the bench delayed the interaction with Hadiya
Hadiya, clad in a red and white salwar kameez and red head scarf was brought into a jam packed courtroom number one by the police personnel and accompanied by her parents father Asokan and mother ponnamma at 2:50 PM, that is ten minutes before the crucial hearing was to commence yesterday.
All had expected that the only dispute which remained was whether the interaction of the judges with the woman should be held in open court as was decided earlier, or in camera given the sensitivity of the case and taking into consideration her privacy as the issue involved was an individual’s marriage.
After briefly hearing Shyam Diwan who represented the woman’s father Asokan who demanded in-camera examination and the NIA counsel ASG Maninder Singh, the bench decided that they will hold it in open court only.
At one stage the Chief justice said “Its already 4:15 and we shall continue with the arguments tomorrow”.
The legal team supporting the couple- Senior advocates Kapil Sibal, Indira Jaising and lawyer P V Dinesh began losing patience and pointed out to the bench that “this was very unfair”.
They pointed out that this issue had been sorted out in the last hearing on October 31 after which the bench decided to interact with the girl first and the issue of “what should happen first should not have been re-opened”.
Sibal remarked, “I am saddened that in place of letting the autonomous adult, Hadiya, voice her opinion on the entire issue, the Court is attaching more significance to the investigation report on her psychological brainwashing and the syndicate responsible for such conversions. The first step would be to interview the girl”.
BENCH GRAPPLED WITH THE CASE
Justice D Y Chandrachud responded:”We are not actually concerned about the investigation at this moment only on liberty and autonomy the woman cannot be held in custody like this..but we are pondering about the stage..at which stage should the interaction happen..this is the first time we are getting such a case..we are new to such a case…”
“As far as investigation is concerned let the investigation continue what shall be investigated is not the job of the court..only thing is we have to lay down parameters..first stage… second stage..like that”, CJI Dipak Misra chipped in to say.
“We have not refused to interact ..but the stage..what stage.should we do it before looking or after looking at the documents placed before us”, said the CJI.
Justice Khanwilkar added: “For normal case normal rule but are we dealing with a normal case ? No..so that is why we are taking time”.
Sibal said as an individual, Hadiya says she still wants to go, even if indoctrination is true. “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.
The fact that the bench had not made up its mind whether to hear Hadiya even after two hours of frenzied arguments back and forth, infuriated the counsel. Indira Jaising asked whether the bench would have doubted her faculties, had Hadiya been a man. This angered Justice Chandrachud, who said the bench treated both genders equally. “How did the gender issue come in here”, asked the CJI, Dipak Misra, expressing his surprise.
Many counsel then cautioned the bench that Hadiya is a doctor and has her own mind. “What would she think, if the Court did not find her worthy of hearing her, after calling her”, they asked the bench. “She understands all that is going on in the court, they told the bench.
The Chief Justice then told Sibal and Jaising: It’s a complex case..I, my brother judges Justice Khanwilkar and Justice Chandrachud have sat in different High Courts too..we have not come across such a case there also..I haven’t …they too agree..This is the first time.so tht is why we were proceeding cautiously.a bit slowly
Then followed the one-to-one conversation between the bench and Hadiya.