Thread by @LiveLawIndia, Hijab Ban Case : Day 10 of Hearing before Full Bench of [...]

Hijab Ban Case : Day 10 of Hearing before Full Bench of #KarnatakaHighCourt.

The Court to continue hearing Muslim students' plea challenging #HijabBan in colleges at 2.30 PM today.

Follow this thread for live-updates from the hearing.

#KarnatakaHijabRow

Yesterday, the Court clarified that the interim order will apply to degree colleges as well, where uniform has been prescribed and that the order confines only to students.

#Hijab https://www.livelaw.in/top-stories/hijab-row-order-banning-religious-dress-applies-to-degree-colleges-pu-colleges-where-uniform-is-prescribed-applies-only-to-students-karnataka-high-court-clarifies-192645

Hijab Row - Order Banning Religious Dress Applies To Degree Colleges & PU Colleges Where Uniform Is...

The Karnataka High Court on Wednesday clarified that that the interim order passed by it on Febru

https://www.livelaw.in/top-stories/hijab-row-order-banning-religious-dress-applies-to-degree-colleges-pu-colleges-where-uniform-is-prescribed-applies-only-to-students-karnataka-high-court-clarifies-192645

Yesterday, the Court heard the arguments of Senior Advs SS Naganand and Sajan Poovayya @poovayya on behalf of college and CDC members.

#HijabBan #KarnatakaHighCourt https://www.livelaw.in/top-stories/karnataka-high-court-hijab-ban-secularism-religious-symbols-in-educational-institutions-192654

Hijab Case - Allowing Religious Symbols In Educational Institutions Against Secularism : Colleges &...

A Full Bench of the Karnataka High Court today continued hearing the Respondents in the petitions

https://www.livelaw.in/top-stories/karnataka-high-court-hijab-ban-secularism-religious-symbols-in-educational-institutions-192654

Bench assembles. Proceedings are live-streamed here :
#HijabBan #KarnatakaHighCourt

Advocate General responds to observations about Campus Front of India.

AG : Mr Nagannand informed about complaints made by teachers against some organization. We have registered FIR. We will place it on record the report in a sealed cover.

#HijabBan #KarnatakaHighCourt

Sr Adv Guru Krishnakumar now appearing for respondent no 8, a lecturer in the Udupi PU college.

"The regulation which is now sought to be challenged would have to be considered from the point of view the object it seeks to achieve"

#HijabBan

Krishnakumar : The objective is to bring in uniformity and bring about non-discriminatory treatment of students. We are dealing with activty which is in a secular place. The moment a student comes to education institution and partake in imparting of secular education...

Kirshnalumar: The regulation brought in would have to be tested on the anvil of object of non-discriminatory treatment of students pursuing secular education in a secular space.

#HijabBan #KarnatakaHighCourt

Krishnakumar: Second aspect I want to highlight is the nature of jurisdiction exercised by constitutional courts in such matters. Grievance of petitioners is premised on that the wearing of attire in question is part of essential religious practice protected by Art 25.

Krishnakumar : The nature of jurisdiction exercise by a Constitutional Court is not an eccelsiastical jurisdiction. It is only due to Constitutional necessity that the Court gets into it. And there are limitations for the Court in doing that.

Counsel refers to SC's decision in AgamaSastra case
https://indiankanoon.org/doc/143215272/

"Performance of such tasks is not enjoined in the court by virtue of any ecclesiastical jurisdiction conferred on it but in view of its role as the Constitutional arbiter"

CJ : This is what we're doing.

Krishnakumar: AG had placed some portions of Quran, which are in contrary to petitioners claim. The regulations are dealing with activities of petitioners which are not religious, but an activity which is secular-education

Krishnakumar: A third aspect I want to highlight is that scheme of the Education Act. Petitioners have said uniform cannot be prescribed. Please refer to Section 7.

#HijabBan

Krishnakumar: The purpose of prescription of dress code is to bring about equalistion and equality in a common platform. The Act recognises this and allows Schemes for such purposes.

#HijabBan #KarnatakaHighCourt

Krishankumar: There was reliance on Article 19 (1) (a), there can be speech and non speech compeents to the article. This activity can be regulated by non-spech component. There can be regulation of non-speech activity. Bennet Coleman case recognises this.

#HijabBan #Karnataka

Krishnakumar: One last aspect milords, the regulation (impugned GO) in question will have to be also understood in the light of the fact that it is not intended to interfere religion perse. It is only related to education.

Concludes.

Sr Adv Devadutt Kamat @Devadattkamat seeks time for rejoinder. He seeks one hour time.

CJ : Mr.Kamat, it will be better if we hear all the petitioners first.

#HijabBan #KarnatakaHighCourt

Sr Adv Kirti Singh makes submissions for All India Democratic Women's Association.

AG : The petitioner does not disclose under which Act they are registered.

CJ : Are you a registered body?

Singh : We are not a registered body. We are a mass organisation of women which has fought many cases. In Karnataka chapter itself nearly one lakh women are there

CJ: Is there any authorisation in favour of vice president Sri Vimla KS who represents petitioner no 1?

Advocate on Record refers to the pages having resolution.

CJ: The resolution is signed by one Devi. What is the constitution of the committee, which has met and taken the decision?

Singh : It was the Central Committee.

CJ : It does not talk about it. No details

Advocate on Record Aditya Chatterjee points out that the resolution is in the letter head of the organisation and the official seal is there.

CJ : Disclose the constitution of the body taking the decision to file the petition and where is the decision of the committee?

Adv Chatterjee: I will ensure that everything required is palced on record. My request is if my learned senior could address the court.

CJ : Okay. How are you aggreived? Aggrieved persons are before the Court. What is the need for you to espouse the cause?

Singh: There are different women are not before the court, and we want to give a complete pictures, with different grounds not raised.

CJ : Go an assist the petitioners who have come beofre the court

Sigh : We have filed petitions in SC and HC

#HijabBan

Chief Justice: In this manner we cannot allow you to espouse to cause of persons who are already before the court. GO is restricted to students and those aggrieved students are before the court, it is not for everyone to come before the court.

#HijabBan #KarnatakaHighCourt

Singh : There are members who are deeply affected by the GO. For example petitioner no.2 is the mother of school-going children. I can only say that we are genuine parties, we have filed several petitions, at all levels, lower courts, HC and SC.

CJ : We are not on your credentials, we appreciate your concerns. We are saying when aggrieved persons are there, your petition may not be maintainable. We are not satisfied with the maintainability of your petition. We will pass order.

#HijabBan

CJ: Aggrieved persons are represented by very very competent lawyers, so if you want to add anything assist them.

Singh: I want to argued on grounds of Equality, Article 14 and 15 and the burden of satisfying that the impugned order satisfy 19(2) is on the State.

Singh : Will your lordship not hear me? Nobody has placed these arguments before and that is why we have come. Petitioner 2 is affected.

Justice Dixit : Apex court has said personal interest and public interest cannot be a mixture.

Singh : No no.

CJ: We will hear you in other matter.

Singh: This is a matter of national importance, girls are wearing only hijab why they are not permitted. Right to education of the girl is being interfered with. I wanted to bring in whole spectrum of rights these girls are entitled to

Justice Dixit : All these have been argued not only with national judgments but foreign judgments too.

Singh continues making submissions.

CJ : Thank you. We have disposed you.

Court officer mutes Singh.

Court takes up the PIL filed seeking regulations on media chasing hijabi women.

No representation for petitioners. Bench notes office objections also not cleared. Dismissed.

Sr Adv AM Dar now makes submissions.

CJ : Who are the petitioners?

Dar : Students.

CJ : Is this a Govt college? New Horizon...

Dar : Yes.

AG : It is a private college.

Dar : I have studied Arabic too I can assist the Court on Quran too.

CJ: You have said you are studying in New Horizon College? Is this a govt college?

Dar : These are govt aided.

AG(laughs) : I have studied in this school, it is private institution

Dar : We are stopped. We have been denied. Nobody has assisted your lordships properly on Quran. I know Quran. I can assist. (Now gives details of Suras and verses...)

Dar: As far as hijab is concerned I will give full background. Hijab is mandatory in Islam. It has come in Quran. It is last commandement from Allaha. It has come in 4 Hijri, by the time Quran was complete

Dar: First commandement from allah is daily five prayers. It is a different thing if every Muslim follows it. Second is zakaat. If muslim persons are ricjh they can give zakaat. Third is ruling on inheritance. It is defined in Quran and it is obligatory. Fourth is fasting

Dar : Fifth is zakaat..
CJ : What is the fifth one.?

Dar continues making submissions.

AG : Sir, honourable Court wants to know something.

CJ : What is fifth one?

Dar : Haj.

Dar: Hijab word is not there in Quran: The terms refers to partition, in the literal meaning it is some kind of partitition. Hijab is mandatory. Even the wives of prophet would wear it. I will read the suras. I may be permitted to recite from Quran

Dar: I will not mislead the court. I will try to apprise on the quran. Whatever I submit is based on the commandment of Allah.

#HijabBan #KarnatakaHighCourt

Dar: You have to cover head, face and chest to protect modesty and protect all Muslim values. We are not saying we will go in burqa to school. We are covering only the head, face and chest. These are vulnerable parts so that there is no attraction

Dar: These are vulnerable parts so there is no attack by unrighteous people and their eyes stay away. Wearing of hijab is a command from the Allah.

#HijabBan #KarnatakaHighCourt

Dar : We are all sons of Indian soil. We are living in a country governed by rule of law. This (Hijab) is sacred for us. It is not by fashion that we are asking the women to wear it, it is mandatory in Quran. Quran has said cover your sisters and daughters.

#HijabBan

Dar cites verses in Arabic.

#HijabBan #KarnatakaHighCourt

Dar addresses Justice Khazi : Your ladyship will be in a position to understand.

We have two essential religious practices. Number one to receive education, next is covering the head.

#HijabBan #KarnatakaHighCourt

Justice Dixit: Which is the Sura we should note.

CJ: We tried to understand you but we could not. We want to note the relevant Sura.

Dar : I will give.
#HijabBan #KarnatakaHighCourt

Dar : Sura Ghashiyah, Sura Izra

Justice Dixit : Where in the petition you have mentioned? We want to note.

Dar reads a para.

#HijabBan #KarnatakaHighCourt

Dar : During the prophet's time, this is a religion having 2 billion people, we are proud to be Indians, when the prophet was spreading Islam, one of the community from Indonesia, which was a Hindu country, said we will accept provided we can keep our Kundan.

Dar : See the generosity of the Prophet, Prophet allowed it, allowed them to keep their essential religious practice .We are in a democratic country, will a head scarf lead to public order,

#HijabBan

Dar: Muslims offer prayers, women and men differently. But during Haj everyone is together. Even during Haj, covering of head by women is not exempted by the prophet

#HijabBan #KarnatakaHighCourt

Dar : Whatever prophet has said is binding, how can we ignore. Then we are not Muslims.

#HijabBan #KarnatakaHighCourt

Dar: This is command from allah. If we have to lead a good life, we have to follow it. Day of the judgment we have to face. Therefore we advise our sisters, mothers and daughter to wear it.

#HijabBan #KarnatakaHighCourt

Dar : Now I will come to the constitutional aspect. Religion I have covered.

CJ : We have heard you on the religious point. Legal points others have raised...

#HijabBan #KarnatakaHighCourt

Dar: We have protection udner Article 25 and we also have protection of the preabmble of the consitution.
We are such country, our economy is growing day by day. It is not a banana republic. We live in harmony, brotherhood.

#HijabBan #KarnatakaHighCourt

Dar : Scarf is a small issue for such a big country. We should be open minded about this. This is not going to give any effect to the health. Covering the chest..it purifies...it gives modesty..because vulnerable parts, face, chest, we are covering...enhances reputation of women

Dar : Scarf is not causing any problem to morality. Rather, it enhances morality.

#HijabBan #KarnatakaHighCourt

Dar : If same scarf identical to uniform is worn, what heavens will fall? If you put in a scarf, how can it affect public order. If you desecrate the idols, it can hurt feelings and cause public order problems. But how can covering cause public order problems.

#HijabBan

Justcie Dixit: Please show mercy to other friends also. You said 5 min you have taken 10 minutes.

Dar: Wearing of hijab is not hurting anybody.

Justice Dixit: give us the citation, don't read.

#HijabBan

Dar : We live in diversity, harmony, please allow our girls to cover heads, it will not cause any prejudice to anybody. This is not a Hindu Rasthra. This is not an Islamic Republic. This is a democratic secular republic. Please come to our rescue.

#HijabBan

Dar sings Sare Jahan Se Accha song.

"This is cause of life and death for us. Either we will have to leave our education or our principles. Please come heavily on the state. How can they pass this Govt Order"

#HijabBan #KarnatakaHighCourt

Dar concludes.

Justice Dixit : A meritorious speech

#HijabBan #KarnatakaHighCourt

Adv Ahmed: Bhandarkar college has permitted me to wear headscarf since admission. Now they are restricted. The petitioners are degree college students.

CJ: Let it be connected with the petition whcih is before the ld single judge

#HijabBan #KarnatakaHighCourt

Court now takes up the PIL filed by Ghansham Upadhyay seeking investigation into instigation of protests.

Justice Dixit: You have not paid court fees, we will not take it up without it.

Adv Subhash Jha. I will pay it during the day or by tommorow.

CJ : Not maintainable

Now Sr Adv Kamat @Devadattkamat starts rejoinder arguments for petitioners.

Kamat : I have heard scintillating arguments by my learned senior friends. It was a learning process. In a lighter vein, I am like a batsman, faced with fast deliveries from both sides.

Kamat : Some are good length deliveries. I will deal with them. Some are wide deliveries. Some are no balls, by citing overruled judgments, inadvertent submissions.
#HijabBan #KarnatakaHighCourt

Kamat : I have specifically pleaded we have been wearing headscarves since our admission till the GO came. Paragraph 6. No reply/rebuttal is there as far as this is concerned. This is a co-ed school.

CJ : When you were admitted?

Kamat : 2 years back.

#HijabBan

Kamat : Kindly see my reliefs. I have not sought a general declaration for wearing of hijab. I have sought for quashing of the GO and for allowing the petitioners to wear. Second relief is consequential to the quashing of the GO.

#HijabBan

Kamat: My primary challenge is to the GO. Kindly turn to GO itself. Much of my task as far as far as this GO is concerned has become very easy, because of the 90 percent of GO has been given up by the AG. It has been conceded.

#HijabBan

Kamat : Learned AG in all fairness on first day of opening has clearly said that this is not the purport of the order. He has said that it could be result of over enthusiasm and he has said it may be not required.
#HijabBan #KarnatakaHighCourt

Kamat : This understanding of state in the GO was totally flawed. Firstly, none of those judgments cited are applicable. AG kept on saying till the end that he will explain those judgements, but they were not explained. According to me this part of the GO has to go.

Kamat: Second, even if lordships were to discard the concession made by AG. This portion of the GO also has to go because it offends the doctrine of dictation in administrative law. AG says operative portion is innocuous but master is saying hijab is not essential.

Justice Dixit : Acting under dictation..the principle in administrative law.

Kamat : Citing judgments on this point, I know is showing lamb to the shining sun.

Kamat : Third reason why this penultimate part has to go, apart from concessions and doctrine of dictation, is that there is no material. If the judgements are irrelevant, then what is the material to come to understand that hijab is not permissible.

#HijabBan

Kamat : Now we come to the operative part..g has said last three lines of the operative part of GO was not required. So it has been given up. We have a public order ground in the GO, given up by the AG during the arguments.

#HijabBan

Kamat: In the affidavit the state say they are doing it on the ground of Public Order. There is a version of public order in the GO, given up by the AG in the arguments. A definition of Public order against the consitution is put. Is this the way a GO is framed?

Kamat cites a judgment.

Justice Dixit gives the citation.

Kamat : I am amazed at your lordships memory. At my age, I can't remember.

#HijabBan

Kamat : Public order ground has been virtually given up. Now we come to the point whether the College Development Committee, which I call the MLA committee, has jurisdiction to prescribe this. Your lordships put searching questions to both sides.

Kamat : We don't have to go to Westminster. Please have a look at Section 143 of the Education Act. CDC is constituted by a 2014 circular. I am not challenging the circular. I am challenging the vesting of executive functions on this CDC, which are for the authorities under Act.

Justice Dixit : This point has been covered by Ravivarma Kumar, that the functions cannot be delegated to the CDC.

Kamat: I say milords that an MLA is not an officer subordinate to the state govt and that is covered by SC judgement in the case of Ashwini Kumar

Kamat: Lot of arguments have been made that I have not challenged the 2014 circular, I don't need to milords. As long as the CDC remains a Marga Darshak mandal, I don't have any problem. Let them remain as a guiding force. But the problem is when statutory functions are given.

Kamat : The GO has to be quashed. If the GO goes, there is no restriction on the exercise of fundamental rights. Judgments on ERP have been cited without saying when does the stage of Court adjudicating ERP come?

Justice Dixit : When u give reply, u can't introduce new arguments

Kamat : The question of ERP is raised to attack the GO. If the GO goes, the matter ends.

CJ: When you say that if this GO goes, there will be no restriction in exercise of fundamental rights, what is the fundamental right you want to exercise?

CJ: Finish your agruments today, we will extend our sitting time.

Kamat: when a challenge is made that Article 25 right is violated, first question lordships will ask to state, is where is the restriction. Once there is a valid restrictions or valid law, the second question arises, whether the law or order impinges on the right.

Kamat: If the GO goes, the second question does not arise.

CJ : How can you insist wearing of hijab inside the insitution which has prescribed uniform?. You say you have a fundamental right we want to understand that. Forget what AG says, first you have to establish ur right.

Kamat : Your lordships will not ask where is the right.

CJ : No no. You are inisiting to wear headgear, inside insitution whcih has prescribed a uniform. Now you say that it is your fundamental right, you tell us what is that fundamental right?

#HijabBan #KarnatakaHighCourt

Kamat : I did not expect the State to question that right.

CJ : Forget about the State, first you establish your right.

Kamat reads Article 25 says it includes both essential and non-essential practices.

Kamat : Article 25 gives a canopy of rights.

CJ : There is freedom of conscience and practice religion? Which one is this?

Kamat : This is religious practice.

#Hijab

CJ: We want to know what right has been infringed.

Kamat: Before seeing the right, lordships will have to see there is infringement or not.

CJ : You have come to court so you have to establish the right.

CJ: It is the institution which has prescribed uniform.

Kamat: The question which will fall before lordhsips is whether Education act and rules is social reform as far as Islam is concerned.

CJ: Artcle 25 (2) is reformatiory power give to the state.

Kamat : If there is any case which fits in, it is Bijoe Emmanuel. The question SC asked is not to the students show me if it is the essential practice. SC did not ask the students show me your right. SC asked where is the restriction.

Kamat : State has inverted the law here. ERP is not a restriction on fundamental right under 25(1). ERP is a restriction on the State's power to interfere with the religious practice. The question therefore which should fall is where is the restriction.

#HijabBan

Justice Dixit : You have come to the Court saying your rights are infringed. When we speak of restriction, it is in reference to a right which has been allegedly infringed. This is the context in which we see things.

#HijabBan

Kamat: Article 25 (1) is not a restrictive paradigm, the canpoy and width of rights is not capable of being put in a staright jaclket formulaa. If I say there is violation, there should be first a restriction. I am saying not permitting to wear head scarf is infringement

Kamat : Education Act is not an act for reform of religion within the meaning of Article 25(2). There is no judgment which talks of an accidental infringement by an alien act. Education Act and Uniform rule cannot be a measure of social reform.

Kamat : Restriction must have a direct relation to the object sought to be achieved. If the object is to say that hijab a regressive practise, it has to be evident from the plain reading of the (Education) Act and the rules made thereunder

Kamat refers to Constituent Assembly Debates: What is porpounded today, what is today resurrected is exactly what our constitutional framers rejected.

Kamat says an amendment was moved during the Constituent Assembly Debates to say that no visible signs of religion should be displayed in public. This was expressly rejected by the framers of the Constitution. State is now trying to resurrect this. This is not permissible.

Kamat : AG made an astonishing submission that if you claim Article 19 it will destroy Article 25 rights.

Justice Dixit : I have replied to him. RC Cooper was referred.

Kamat : RC Cooper reiterated in Maneka Gandhi, Puttaswamy cases.

Kamat: Then Consitutional morality is cited. This is again inverting our rights jurisprudence. Constitutional morality is not restriction on fundamental right but it is a restriction on states powers.

Kamat : Sabarimala, Navtej Johar judgments are pro-choice. Constitutional morality is pro-choice. It is a restriction on state power.

#HijabBan #KarnatakaHighCourt

Kamat: Arguments are made on possibility of abuse. If we do this then some brahmin boy will turn up with this. In constitution jurisdiction ,we cannot decide on hypothesis but on facts.

#HijabBan #KarnatakaHighCourt

Kamat : Mr.Poovayya cited a Turkish judgment upholding scarf ban. This decision has been overruled. They have reversed that head scarf ban.

#HijabBan #KarnatakaHighCourt

Kamat : There is a Parliamentary law, Commissions for Protection of Rights of Children Act. The Act says rights of child mean the same rights as the international convention of child rights, to which India is a signatory.

#HijabBan #KarnatakaHighCourt

Kamat : The international convention expressly accepts headscarf. I am saying this in response to the argument that it is a regressive practice. Hijab is not a regressive practise, wearing of headscarf is diversity.

#HijabBan #KarnatakaHighCourt

CJ : That is with respect to dignity it was argued.

Kamat: Other jurdiscition cited was france. France and Turkey are exception to the Convention on Child rights.

#HijabBan

Kamat: Lastly I want to say is this, what is the net result. The net result is people who want head scarf or turban, are denied right to education on the pretext of this GO.

#HijabBan #KarnatakaHighCourt

Kamat: Their right to education which is paramount is being put on back burner. As a state you should facilitate and create an enabling atmosphere.

#HijabBan #KarnatakaHighCourt

Kamat: Lastly I say on ERP. We had cited suras from the quran to say that this is ERP. Ld Ag has said it is from http://quran.com

CJ : First clear your stand, whether you want to say ERP or whether to attack it is not necessary to say it is ERP.

The Noble Quran

The Quran and the explanation of the Quran in many language, available in a simple and easy application

http://quran.com

Kamat: It is ERP there is no doubt about it. There is also there is no valid restriction. In the absence of valid restriction for the court to go into the arena of ERP is not required.

#HijabBan #KarnatakaHighCourt

Kamat: http://Quran.com is a compilation of various authors including Syed Yusf Ali. It is not an unauthorised transaltion. The verses in quran clearly say.

CJ : Where is it said?

Kamat cites the verses. Arabic word is "khimer".

CJ : Khimer is not a hijab.

Kamat : Khimer is a veil, it is like a ghoongat.

Kamat refers to Justice Kurian Joseph's judgment in Triple Talaq case to say what is mentioned in Quran has to be followed. Second source is Hadith. Hadith is as authoritative as the Quran itself.

Kamat : Hadith stands on the same footing as the Quran as per Justice Nariman's judgment in Shayara Bano case.

#HijabBan #KarnatakaHighCourt

Kamat : None of the counsels have disputed the two judgments of Kerala High Court, which held hijab is essential, and the Madras HC judgment which held burqa is not but headscarf is an essential practice. They have not shown any contrary judgment.

Kamat: I have cited three judgement that hijab is ERP of islamic religion. I submit that GO which is the basis for our action before our lordhsips is illegal, there is no valid restriction for exercise of Article 25

Kamat : I want to conclude with what Dr.Ambedkar said after the drafting of the Constitution. That however good the constitution is, if the people who implement it are bad, then it will be a bad result. The way State has implemented the good Constitution is bad.

Advocate General submits a sealed cover envelope on the progress of investigation in the complaint registered (against CFI)

Chief Justice says that the hearing will be finished tomorrow and tomorrow the Court will hear the remaining petitioners.

#HijabBan #KarnatakaHighCourt

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