The 3 judge bench of Chief Justice Dipak Misra, Justices D.Y. Chandrachud and A.M. Khanwilkar started with hearing the plea for placing Ms. Hadiya out of her parent's custody. In the last hearing on 9th October, the court had refused the prayer by Mr. Dushyant Dave to put Hadiya out of her parent's custody.
ASG Maninder Singh, appearing for the respondent opposed the prayer. He noted that due to indoctrination, Hadiya’s opinion and consent could not be said to be free. The Chief Justice first questioned the basis of Mr Singh conclusion that there was no free consent and added that a single case could not define the essentiality of the law. The law and the principle of Habeas Corpus is that a major could choose his or her own place of residence and the only exception was in cases of mental incapacity. Mr Singh pointed out that the Kerala High Court had recommended taking note of the psychological imbalance caused by indoctrination and urged that indoctrination be added to this list of exceptions.
Mr.Singh next brought to the attention of the Court the NIA Report which showed that there were more than 89 cases of indoctrination in Kerala alone, of which 9 were carried out by the organization that was being held responsible in this case. However, the Chief Justice pointed out that nothing illegal had been disclosed in any of these instances. Mr.Singh concluded with the statement that in this particular case the past criminal antecedents of the Petitioner-husband should be considered when evaluating his prayer. The Chief Justice, however, rejected this argument, questioning whether there was anything in the law that prohibited a major from falling in love with a criminal.
Mr Shyam Divan, Senior Counsel appearing for Hadiya's father started by stressing that the Court should follow the trajectory it had itself set into motion by ordering an NIA investigation – in other words, the only logical next step was to examine and take a principled view of the NIA report findings. There was no change in circumstances justifying a change in the course of proceedings, he observed. He argued that this writ petition should be seen in the context of a huge organizational apparatus, the Popular Front of India, comprising students, preachers, that was radicalizing youth and vulnerable adults. In this regard, it was not just minors who needed protection but 'vulnerable adults' as well who were influenced to adopt extreme views.
Mr Divan sought to bring to the notice of the Court two affidavits which he considered as supplementing the findings in the inquiry. They were both by persons who had gone through such radicalization themselves but had now emerged from it. However, the Chief Justice intervened to note that these affidavits were meaningless at this juncture. He stressed that the law regarding habeas corpus remained clear – the Court had to direct production of the person.
The Chief Justice then stated that all of these points, as well as the larger legal question of whether indoctrination was to be considered in a habeas corpus petition, would be decided after the young woman was produced before the Court. Since the Court was not directing that she be given to her husband’s custody, there was no reason to discuss his antecedents at this point. This question of where she would go would be considered last, after deciding the factors to take into account in – only her own volition or indoctrination as well. But since this required an expansion of the current law relating to habeas corpus, it was first necessary to satisfy the existing requirements under the law – first of all, production of the person.
Accordingly, the order of 16.08.2017 was modified and the presence of the daughter of the First Respondent before the Court at the next date of hearing, i.e., 27.11.2017, was directed. It was clarified that the proceedings would not be in camera. The matter has been listed for 27.11.