The Karnataka high court has resumed hearing the writ-petition case on Wednesday (ie. Day nine of the hearings) regarding the ongoing hijab row in the state. To keep a track of the hearing, the major highlights from the case will be listed below.
Background of the case:
The petition garnered media attention primarily owing to the Hijab row engulfing the state of Karnataka. What started out as a government college hindering hijab-clad women from entering college campuses, has now blown into a full-fledged debate. The administration claims that the women were violating the dress code enforced by the college and as such cannot be permitted. The students on their end flagged the administration’s move as discriminatory and clearly opine that the hijab was a part of their faith and they felt no reason to abandon it.
This further blew up as saffron-clad Hindtuva students protested against the wearing of the hijab, dubbing it an issue of religious symbols being introduced in educational spaces. Muslim students, mostly female opined that they were wearing the uniform and as such were not violating any rule and also stated that the hijab was of significance to them as it was an essential practice of their faith.
High court denies interim relief to plaintiffs:
A few days ago, the bench stated that interim relief (for the plaintiffs) is not needed as it is a matter of a few days before the verdict will be pronounced. Further, the bench argued that till the matter is pending students and stakeholders will not insist on wearing any religious garment or headscarves (ie the hijab).
Major highlights (February 24)
05:38 pm: “Arguments are to be finished tomorrow and the order will be reserved tomorrow,” CJ Awasthi said. He asks parties to give written submissions within 2-3 days. Hearing to resume at 2.30 pm tomorrow.
05:35 pm: “I am ending with what Dr Ambedkar said after finishing drafting of Constitution. He said, “we have a great Constitution but if people who implement it is bad, it will turn out to be bad. The way the State has implemented, even a good constitution has been totally frustrated. But I am equally sure we are in the hands of a constitutional court and we will make a constitution work and justice will prevail”. Kamat concludes arguments.
05:33 pm: “None of the counsel from the other side has disputed the two judgments of the Kerala HC and the Madras HC where they came to the conclusion that purdah or burqa may not be essential practice, but the headscarf is. None of them has cited a decision that headscarf is not an essential part, I have cited at least 3 Indian judgments which categorically says headscarf is an essential part of Islam” Kamat said.
05:28 pm: “quran.com is not a translation. It is a compilation of various authors including Yusuf Ali,” Kamat said. “Has any court in the country treated it as authoritative text?” CJ Dixit asked.
“It is not an unauthorized translation but is a compendium of translations by reputed authors. Hadith is also a source of Islamic law, it was noted in the Shayara Bano case. It is not a second degree but the first source. Justice Nariman’s judgment in Shayara Bano says Hadith is as authoritative as Quran itself,” Kamat replied.
05:27 pm: “There is no doubt that this is an ERP. But I am also saying that the GO which puts the restriction is illegal. In the absence of valid restrictions, it is strictly not necessary for the Court to go into ERP. But if the court does it, then I say it is ERP,” Kamat said.
05:23 pm: “Nobody is denying that the hijab is not a recognized headdress,” CJ Awasthi said. “It was argued that hijab is regressive practice, why should girl be covered with hijab. In response to that I am saying….
CJ Awasthi: That is with respect to dignity
Kamat: They had argued in France. France and Turkey are the exceptions to Convention on Child Rights. The net result is that people who want headscarves or turbans, like Sikhs, are being denied on the pretext of GO. Their paramount right to education is being put on the backburner. The State should facilitate and create an enabling atmosphere.
05:21 pm: These rights have been ratified by 196 countries including India and incorporated into Municipal legislations and they expressly recognise headscarves. It was argued that the hijab is regressive practice, why should girls be covered. I am showing this Act to show that it is not regressive. It is only a display of diversity.
05:18 pm: “Some submissions were made about other jurisdictions. Mr Poovayya cited a European court decision from Turkey where he said the headscarf ban was upheld. This decision was subsequently overruled. The Turkey Constitutional Court reversed the ban. There is a Parliamentary enactment Commission for Protection of Child Rights Act, 2005 and it talks about the rights of children. It has been defined by the Parliament to be the same as the Convention on Rights of children,” Kamat said.
05:13 pm: “What is being propounded has been expressly rejected in the Constituent Assembly Debates. Our framers expressly declined to do this. The state is trying to resurrect this and it is not permissible. Constitutional morality was cited by them. It is not a restriction on a fundamental right. It is a restriction on State’s power. All the decisions including Sabarimala, Navtej are all pro-choice decisions. Today they are asking to use constitutional morality to defeat choice. our Lordships have to decide on facts” Kamat said.
05:12 pm: The intention to restrict has to be very clear by the Act itself. It has to say that ‘hijab is not conducive for XYZ reasons and therefore we are making a law’. They cannot bring in Education Act and some rules. The restriction has to have a direct relation to the object. If the objective is that hijab is regressive practice and they want uniformity, then the Act and Rules have to be clear on that” Kamat said.
05:09 pm: “What is the restriction? You have come to writ court complaining that your rights are being infringed. Hon’ble CJ is saying where is your right is the question,” Justice Dixit asked. “I am grateful as that is the heart of the case. Article 25(1), the canopy, width and ambit of rights is not capable of being put in a straitjacket formula. It is my practice of faith to wear a headscarf which is restricted. If there is a restriction where is the law? And I say there is no law. Education Act is not a measure of social welfare or reform for the purpose of 25(2)” Kamat said.
05:05 pm: “The question is whether the Rule made under Education Act prescribing uniform is a measure of social reform as far as Islam is concerned,” Kamat said. “Art 25(2) is reformatory power. It is not for enacting Education Act and prescribing the uniform,” CJ Awasthi replied. “In the Bijoe Emmanuel case, the SC did not ask the students, show me your right. They asked, show the restriction. If there is no restriction then there is no question of ERP,” Kamat said in response.
05:02 pm: “I would like to differ slightly in approach. Before Your Lordships question me on where is my right, I would ask myself, where is the restriction because 25(2) is very clear on what can be restricted,” Kamat said.
“We are not talking about any restriction. We are just talking about your right which you are insisting on,” CJ Awasthi responded. “My right flows from the Quran,” Kamat replied to that. “You say it need not be ERP. So we want to know what right has been infringed,” CJ Awasthi asked.
05:01 pm: You are saying it is part of religious practice. Then kindly establish that: CJ Awasthi
04:59 pm: Kindly see Article 25(1);. It includes essential practices and non-essential practices. It is a canopy of rights.
04:57 pm: “You are insisting to wear a particular headdress in an institution that has a uniform. You have to establish what fundamental right is being infringed. Forget about what the state has said. Show right under Article 25(1),” CJ Awasthi said.
04:55 pm: “I am saying the state has not satisfied the first threshold and has not been crossed. The GO has gone. So what remains is Rule 11. How can you insist on wearing hijab in an institution which has a uniform? What is this fundamental right you have is what we want to understand? Kindly have a look at Article 25(2)(b)” Kamat said.
04:54 pm: “When a challenge is made that a right under Article 25 has been violated, the first question is where is the restriction. Once there is a valid restriction, valid law and order have the force of law. And then, the second stage of scrutiny is whether it impinges the right upon ERP,” Kamat said.
04:50 pm: What I am saying is that the Essential religious practice question was raised by us only as an attack on GO. The GO falls and matter ends. But since it has been raised, it becomes my duty to point it out. “When you say GO goes, there won’t be a restriction in the exercise of fundamental rights, what is that fundamental right?” CJ Awasthi asked. “I will start tomorrow on this,” Kamat replied.
04:48 pm: On all counts, this GO cannot stand, whether it’s the penultimate part or the operative part. The GO has to be quashed. If the GO goes, there is no restriction ipso facto on the exercise of a fundamental right under Article 25. The proposition which I want to place is that judgments after judgments on ERP have been cited without actually telling the court when does the stage of Essential religious practice (ERP) come in constitutional adjudication. “You cannot bring new grounds in a reply, this has been laid down in many decisions,” Justice Dixit said in response.
04:45 pm: “An MLA is not an officer subordinate to the state government which has been covered by a judgment of the Supreme court Ashwini Kumar Upadhyay vs Union Of India. They have argued that we have not challenged the 2014 circular. I do not need to challenge it. As long as the circular prescribes CDC as the marga darshak Mandal, I don’t have a problem. Let the CDC guide the college, the MLA can be a guiding force. But the problem is when you invest CDC with statutory functions,” Kamat said.
04:42 pm: “So ‘public order’ ground has virtually been given up. Now coming to point of if College Development Committee has the jurisdiction to undertake this exercise as contemplated by the GO. AG says it is the Westminster model. MLAs are there and they are public representatives. What is wrong? I say everything is wrong. We don’t have to go to Westminster. Please have a look at Section 143 of the Karnataka Education Act. I am challenging the investing of executive and statutory functions to the CDC,” Kamat said.
04:34 pm: The third reason why this part of the GO has to go is that there is no material. If the judgments are irrelevant, then what is the material to arrive at this prima facie understanding that hijab is not a part of fundamental rights. It cannot be the ipse dixit of some administrative official. On the operative part of GO, also AG says the last three lines were unnecessary and not required. On ‘public order’ in the GO, the affidavit they have filed they say public order: Kamat
04:32 pm: Even if your Lordships were to discard the concession made by the AG, this part of the GO has to go since it offends the doctrine of dictation in administrative law: Kamat
04:26 pm: “I am not asking for a general declaration that the headscarf is part of essential religious practice. My primary challenge is to the GO. Much of my task as far as this GO is concerned has become very easy because 90% of the GO has been given up by the Advocate General and has been conceded, My Lord. The AG has clearly said that the 3 judgments depended by the GO on hijab are not the purport of the order. He said that it might have been the result of over-enthusiasm by drafters and it might not have been required. These 3 judgments do not say that the headscarf is not a part of fundamental rights and this was given up by the AG. This part of the GO according to me, has to go,” Kamat said.
04:25 pm: “I am not representing a PIL client or any community, I represent my petitioners. I have specifically pleaded that we have been using a headscarf right from our admission and till the GO came and we were stopped thereafter. There is no reply or rebuttal to this averment. Secondly, this is a co-ed school,” Kamat said. “When were you admitted?” CJ Awasthi asked. “We were admitted two years ago,” Kamat replied.
04:21 pm: Rejoinder arguments begin. Senior Advocate Devadatt Kamat starts arguments. “I have learned a lot from the scintillating arguments. In a lighter vein, I feel like a batsman. There have been fast deliveries from both sides,” he said. “You were the opener,” CJ Awasthi remarked in response.
04:19 pm: Advocate Subhash Jha commences arguments. “You have not paid the court fees. Without the fee, we will not touch the papers,” Justice Dixit said. “I will pay it during the course of the day,” Jha replied.
“Not only court fees, but 14 objections are also there in the petition. It is not maintainable without court fees and the requirements of a writ petition,” CJ Awasthi responded. “We will clear office objections by tomorrow,” Adv Jha said. To that, CJ Awasthi said “We can grant you time to clear objections. Petition to be heard tomorrow.”
04:15 pm: “This is not a Hindu Rashtra or an Islamic republic. It is a democratic sovereign secular republic where rule of law must prevail. This is a community that has produced Kalam sir who is the missile man of India. Please come to our rescue. The interim order is unconstitutional as it suspends fundamental rights. This is a question of life and death. We will have to leave our education because we cannot compromise on these principles,” AM Dar said.
04:13 pm: “This is a marginalized community as far as education is concerned. It’s because of our own fault. We live in harmony and diversity. Please allow our girls to cover their heads. It won’t cause prejudice to anybody,” AM Dar says.
04:12 pm: “Please show mercy to other friends also. There are many other advocates who also have to argue,” Justice Dixit said. “Just 3 more minutes,” Dar replies.
04:11 pm: “If someone keeps desecrating the image of Lord Rama or any Hindu goddess, then it is public order issue. If you desecrate the images of other religions, it hurts feelings and it can be public order. But by simply covering the head, how does it lead to loss of public order?” Dar argues.
04:05 pm: “In Kesvananada Bharati’s judgement, the Preamble was found to be a part of the basic structure of the Constitution. It is protected by the constitution. We are such a country and our economy is growing day by day. We are proud to be the largest democracy and we are not a banana republic. We live in harmony and brotherhood. The scarf is a trivial issue for such a huge country. Our heart should be open, it should be wide. Scarf enhances the reputation of the lady, it purifies and gives modesty. It does not cause any public order issue and It is not causing any immorality,” AM Dar said.
04:04 pm: “We have protection under Article 25, and also the Preamble which nobody has touched till now,” Dar says. He further reads the preamble and he stressed the matters of liberty of thought, expression, belief, faith and worship.
03:56 pm: “This religion has 2 billion people across 57 countries. We are proud to be Indian citizens. We are the second largest community in India and we love to live in harmony and love brothers of the majority. We have fought wars together and we fought for independence and the establishment of the Constitution together. We are a democratic country. How will the hijab create public order? When offering prayers, ladies have separate spaces. But during haj, we do it together since it was exempted by Prophet. But during Hajj also women have to wear scarfs to cover the chest, face, head,” AM Dar said.
03:54 pm: CJ Awasthi: We want to know which Surah this is.
AM Dar: I will provide
(and he gives details regarding the Surah)
03:49 pm: AM Dar recites Surah in Arabic. “Duniya, this world is artificial and what is better is eternal life. After this life, you have to face judgement. This artificial life is only for 100 years, 60 years or 70 years. You will be accounted for at the grave on the Day of Judgement. My Ladyship could be in a position to understand. This is very important. We have to be ready to face the judgment. Receiving education is also an essential part of Islam,” he said.
03:47 pm: “We have to face the judgment. Your Lordships are sons of the Indian soil and we are all sons of Indian soil. Muslim women will be identified by Burkha and wearing it is not by compulsion. It is sacred to us. It is not by way of fashion, the Koran has said that you have to cover your sisters and daughters with a scarf and it is mandatory for us,” AM Dar says.
03:40 pm: Dar reads out from the Quran and submits that hair, face and chest must be covered to protect modesty and privacy. “Believing women must wear khimar and cover chest. We only want to cover the head, hair and chest. We are not saying we will go in a burqa. It is a small part we are covering. All three vulnerable parts i.e, the head, hair and chest. These are sensitive parts of the body of women. They should cover so that people don’t gaze at women. At that time this practice was common even among Christians. It’s mandatory to cover the chest. It is a question of life and death for us. We do not want to destroy anything secular.
03:36 pm: “What is the 5th commandment?” CJ Awasthi asks. “Haj,” Dar replies. “The word hijab is not in Koran. Hijab refers to a partition. It is a screen between one individual from another. It is mandatory, even the wives of the Prophet would wear it. I will recite in Arabic and will not mislead your Lordships. I will try to best of my capability to apprise of the Koranic verses which are on the basis of the commandment of Allah,” AM Dar says.
03:30 pm: There are 3 important issues here, one is to prove that it is an essential religious practice that can be seen from the Koran. There are 4 kinds of coverings. One is the burqa, one is the abaya and it covers everything. Then it’s the ihram, and then the hijab. Hijab is mandatory in Islam. It is the last commandment from Allah. It has come in the fourth Hijri. By that time Quran was almost complete. The first commandment is obligatory during the daily 5 prayers. Nobody can say no. It is another thing whether all Muslims do it or not. The second is Zakat and the third is the rulings of inheritance which is defined in the Koran. The Fourth one is fasting in Ramzan which is compulsory, with a few exceptions. Hijab came during the fourth Hijri: AM Dar
03:27 pm: Senior Advocate AM Dar commences arguments. “Is this a govt college?” CJ Awasthi asks. “Yes,” the advocate replies.
AG: It is a private institution.
Dar: I have been denied from entering. That is the reason I am before Your Lordship.
“Is this a govt college?” AG asks once more.
Dar: We have been prevented from entering.
Justice Dixit: You are not answering the Chief Justice’s question.
Dar: It is government aided.
AG: I have studied there. It is a private institution
03:23 pm: The PIL was dismissed for not complying with the Karnataka PIL Rules and Advocate Mohammad Tahir withdraws two other petitions.
03:22 pm: “All of this has already been argued,” Justice Dixit says. “We want to say why Art. 19(2) will not apply, why scarf-wearing is not a public order issue. The court is under an obligation to strictly scrutinise this legislation,” Kirti Singh replies.
03:20 pm: There is no reason why the hijab should not be permitted in schools. We are not against uniforms but we have to see what is the least restrictive way of not interfering with the right to an education that these girls have: Kirti Singh
03:19 pm: “Will Your Lordships not hear me? Nobody has spoken of the different principles and we will put the women’s perspective in front of you,” Singh said. “Supreme Court Personal interest and public interest cannot be an admixture in PIL jurisdiction,” Justice Dixit replies.
03:17 pm: Advocate Kirti Singh: Members of our organization are aggrieved. Petitioner number 2 has 3 children who are being affected by this GO
We are not satisfied about maintainability of the petition. Aggrieved persons are represented by very competent lawyers: CJ Awasthi
03:16 pm: Kirti Singh: We are a genuine party, we have filed a number of petitions before many lower courts, High Courts and the Supreme Court.
CJ Awasthi: We are not on your credentials. The petition would not be maintainable when the aggrieved persons are already before the Court.
03:07 pm: AG Navadgi says the petition does not disclose under which law the petitioner association is registered and questions the status. “We are not registered. We are a mass organization of women being represented by our Vice President. We have fought several PILs. In the Delhi High Court, we are currently arguing in the petition in the cases of Marital Rape. The Karnataka chapter has 1 lakh women of all religions and creeds and they are particularly marginalized SC, ST women” Kirti Singh says in response.
03:05 pm: Senior Advocate Kirti Singh for the All India Democratic Women’s Association (AIDWA) begins submissions.
03:03 pm: Senior Advocate Devadatt Kamat submits that there are new petitions constantly and he wants time for his rejoinder. CJ Ritu Raj Awasthi in reply said “Let all the petitioners be heard first.”
03:01 pm: The goal of GO is to regulate the activity part of pursuing education as a secular activity and not to interfere with religious freedom per se. So, the grievance projected by the petitioner would not be justified: Guru Krishnakumar. He concludes arguments.
02:56 pm: The motive of the uniform is to bring quality to a common platform. The Act, thus, consciously contains a provision of this type and that is how the regulation question would also have to be considered. There was a dependence on Article 19(1)(a), freedom of speech and expression. There can be speech and non-speech components in the freedom of expression. This is in the ‘non-speech’ element. Guru Krishnakumar
02:54 pm: Section Section 7(2) of the Act says that “The curricula under may also include schemes in respect of inculcation of the sense of the following duties of citizens, enshrined in the Constitution namely to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.” : Guru Krishnakumar
02:53 pm: The third aspect is about the curricula under the Karnataka State Education Act.
02:51 pm: My submission is please look at the claim of the petitioners from the objective looked to be achieved by the regulation. It deals with the secular activity of education and not anything religious: Guru Krishnakumar
02:47 pm: So, there is a limitation to what kind of determination can be done. This has been taken note of by the Supreme Court of India in the case of Adi Saiva Shivacharya v. State of Tamil Nadu: Guru Krishnakumar
02:44 pm: The second point is on the nature of the jurisdiction of Constitutional courts in such matters. The claim of petitioners is hijab is part of the essential religious practices and is protected under Article 25. When dealing with such matters, courts do not exercise ecclesiastical jurisdiction when such a claim is made. It is really as a matter of Constitutional necessity that courts get into it: Guru Krishnakumar
02:42 pm: The purpose of the uniform itself is to completely remove the background of the student. Whatever his/her caste, colour, creed, religion is completely obliterated. The regulation would have to be tested on the anvil of the objective of non-discriminatory treatment of students seeking secular education in a secular space: Guru Krishnakumar
02:39 pm: The regulation sought to be challenged would have to be considered from the point of the objective it seeks to achieve and the objective is to bring about uniformity in the treatment of students in educational institutions. The moment a student comes into an education institution and participates in secular education, any regulation which seeks to achieve non-discrimination cannot be questioned on the premise of Article 25: Guru Krishnakumar
02:37 pm: Adv. General Prabhuling Navadgi refers to Senior Advocate SS Naganand’s submissions on Campus Front of India and the complaint made by teachers.
02:36 pm: Bench assembles and hearing begins. Sr. Adv. Guru Krishnakumar begins submissions on behalf of the respondent.
Major highlights (February 23)
3:12 pm: We are not deciding this public order in a vacuum. We are deciding it within the context of an educational institution: Naganand
3:10 pm: What is the freedom of conscience? Conscience is a term that relates to the philosophical approach of a man diverse from the idea of religion: Naganand
“Public Order”, for the purpose of Article 25(1) has to take colour from the context in which it is there. Public order in 25(1) may not mean the same thing as the expression in 19(1): Naganand
03:05 pm: The question of Article 25 is, whether the prescription of a dress code violative of Article 25? That is the main issue which is being debated. Govt. has not prescribed, they have said institution should take decision: Naganand
3:02 pm: And mother could not have filed an affidavit because the daughter had become major. The petition is not even accompanied by proper student: Naganand
At the instance of such petitioners, time of the court is being wasted: Naganand
3:01 pm: See the affidavit in support of it (the petition) on Page 25. It is signed by the mother of petitioner no. 1. Petitioner no. 1 is Ayesha. Her Aadhar card is there, she has become a major: Naganand
3:00 pm: The petition says the threat was that the students will be marked absent. What is the threat there? If they don’t come to school they have to be marked absent. It says threats were made to not reward internal marks, that never happened, these are bald allegations: Naganand
3:00 pm: Allegations that they have mistreated them are not true. Sweeping generalized allegations that teachers have threatened the students. What threat was given, was it physical harm? Naganand
2:58 pm: What is this complaint which was lodged, State is bound to disclose it: Justice Dixit
I am not aware of it till now: AG
Are you afraid?: CJ
Certainly not: AG
2:56 pm: One more allegations is that we were scolding students. These are teachers with number of years of standing. For them children are like their own – like their kith and kin. Allegations like these, we have denied: Naganand
2:55 pm: They are being instigated by organizations outside the college. There is also information that some teachers have been threatened by this organization. They were scared to even lodge a complaint, but I understand some complaint has been lodged eventually: Naganand
2:54 pm: Naganand: Some baseless and wild allegations have been made about ill treating students. Allegations that petitioner students have been insisted to remove headscarf by shaming them and invoking religious identity never happened.
2:54 pm: If information is called on one organisation, then information about all organisations should be called for: Adv Tahir
2:50 pm: The government must be having some inputs about these organizations: CJ Awasthi
The Intelligence Bureau may probably have it, in the light of the commotion being caused in educational institutions: Naganand
2:48 pm: Then some persons from Campus Front of India which seems to be a radical type to school and started insisting that the girls wear hijab. When refused they started behaving rashly and started protesting. Then Muslim girl students refused to attend classes without hijab.
2: 47pm: Then comes a problematic issue. At page 5 para 9, in an educational institution where there was peace and harmony – on 21.12.2021 some parents met the college authorities insisting that girls should be allowed to wear hijab. Principal requested that they wear uniform: Naganand
2:45 pm: You mean to say that uniform is compulsory since 2004-05? : CJ Awasthi
Yes. It has been consistently the same since 2004. There was no problem and students were attending. It is not some stray resolution: Naganand
2:44 pm: See page 16 of the statement of objections of Respondent 5 and 6. It is decided to make uniform compulsory this year as it was the previous years.
This was in the year 2004: Naganand
2:43 PM: Their representations only say that they are studying here and have been stopped from wearing hijab.
CJ Awasthi: This was only on 30th December
2:42 pm: They refer to a guideline which says Pre-University colleges cannot make it compulsory not to wear hijab. That is all they say: Naganand
2:41 pm: So it is not as if these students are professing any faith in that sense that they must always be wearing hijab in public: Naganand
2:40 pm: Their pleadings are extremely vague. Naganand refers to Aadhaar card of one of the petitioners in the petition The photograph is there without hijab. Page 29 also another petitioner without hijab. Page 32 without hijab: Naganand
2:39 pm: The question that arises is whether the prescription of educational institutions on wearing uniforms in classrooms violates the freedom to practice religion: Naganand
2:38 pm: SS Naganand continues.
The question that arises is whether prescription of educational institutions on wearing uniform in classrooms violates freedom to practice religion: Naganand
The question that arises is whether the prescription of educational institutions on wearing uniforms in classrooms violates the freedom to practice religion: Naganand
Media says that we will deliver judgment this week. How can we do that without completing the hearing?
2:37 pm: Bench assembles
Major highlights (February 22)
05:14 pm: Court to continue hearing at 2.30 pm tomorrow.
04:58 pm: The girl students did not wear the hijab previously. Occasionally, the parents of the girls had asked about it and asked the teachers to ensure that the girls should not be involved in singing, dancing and such activities. None of these have anything to do with religion. There is a fine line of distinction between religious culture: SS Naganand
04:55 pm: The prayers in this petition are unusual – the prayer is to initiate enquiry against college for violating guidelines and for investigation against college authorities for hostile approach: SS Naganand.
04:52 pm: Senior Advocate R Venkataramani concludes. Senior Advocate SS Naganand begins submissions, appearing for three respondents.
04:50 pm: In our country, different faiths have their own domains and dimensions and live peacefully. I come from the Union Territory of Pondicherry. We have never known any clash between religions. In different parts of the country, we find clashes for the assertion of rights: R Venkataramani
04:46 pm: We as a nation have been pluralistic. But looking at experiences around the world, the Constitution makers thought we should not have those experiences here. So, public order, morality and health care guidelines. The state must look ahead and see what promotes order, discipline and what promotes good for the community. It is not only in Udupi, agitations are happening in many places. These proceedings are being watched by many: R Venkataramani
04:43 pm: Public order cannot be seen in a generic sense or abstract sense. The context here is a public space of a school: R Venkataramani
04:41 pm: Freedom of expression does not mean we have to back to the dark ages. We want to go forward and not go back to Dark Ages. People must have all the freedom to practice Holy Koran. But when you enter a public space, that too a qualified public space such as a school, it has its own dimensions.
04:37 pm: In Article 25(2), the state also comes in to regulate economic, social, financial or political activity. When that regulatory power comes in, issues essentially comes in. But with respect to Article 25 (1), what is essential does not arise: R Venkataramani.
04:34 pm: The state should not get involved in matters of what constitutes religion whatever is essential or not essential. The state will come in when it collides with public order, morality or health. Whatever be your practice, if it comes into conflict with public order, health or morality, the state can say ‘I will stop you’: R Venkatramani
04:32 pm: My second proposition is on Article 25 (1). Under it, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion: R Venkataramani
04:28 pm: Europe today is going through pluralism and merger and they can’t even hold together. EU is breaking. So to borrow a country’s example mechanically and to graft it Constitutional discipline in India might be problematic: Venkataramani.
04:26 pm: As long as a fundamental requirement of order in the institution is indispensable, mere deficiencies in procedure will not lead to nullification of such decision: Venkataramani
04:26 pm: “There is great stress on order and discipline. Any part of the world, the ethos, cultural aspect, the long history of the nation. France might not have a long history of pluralism. We do: Venkataramani
04:19 pm: Discipline and order are important for both teacher and taught. I am not trying to say that Religion A is higher or B is lower. There is no hierarchy of religions. Everyone has an equal right to practise and propagate their religion.
04:19 pm: Sr Adv. R Venkataramani begins submissions on behalf of a respondent-teacher.
04:18 pm: AG Navadgi concludes arguments.
04:17 pm: Women’s dignity must be kept in mind. This morning when I was coming to the Court I heard a beautiful song in Hindi: “Naa munh chhupake jiyo, Aur naa sar jhuka ke jiyo” That is what every woman must be trained and be expected to: AG Navadgi
04:06 pm: The entire claim of petitioners is to make it compulsory and that goes against the fundamentals of Constitutional interpretation: AG Navadgi
3:28 pm: Whatever Surahs the petitioners referred to, does not speak about the hijab.
3:25 pm: The petitioners made their arguments based on Surah number 24, verse 31. “Say to the believing women that they should lower their gaze and not show their face to male relatives.”
3:21 pm: Abdullah Yusuf Ali’s translation also contains commentary to use for inferences in this case.
3:19 pm: AG also refers to English translator Marmaduke Pickthall. “Justice Chandrachud referred to him in Shayara Bano case.”
3:17 pm: “We have great respect for holy books and have only followed Yusuf Ali’s translation like the apex court has done.” : AG Navadgi
3:15 pm: Abdullah Yusuf Ali’s translation has been noted in the Shayara Bano case.
3:10 pm: AG Navadgi quotes from Surah number two, verse 144, 187, Surah 17, verse two, seven, Surah 22, verse 29. The AG is quoting from the English translation of the Quran by Abdullah Yusuf Ali, a Pakistani lawyer.
3:06 pm: Discussing Ismail Faurqui from the Ayodhya judgement the bench in the case noted that, “It may be noted that Article 25 does not include the right to acquire or possess property. Neither does it include the right to pray anywhere.”: AG Navadgi
3:05 pm: Unlike France, there is no prohibition in our country on religion: AG Navadgi
3:00 pm: Every institution has institutional discipline. It may be hospitals, schools, military establishments: AG Navadgi
2:48 pm: AG: Our case is that so far as the present case is concerned, Rule 11 places reasonable restriction as a matter of institutional discipline. There is no ban on wearing hijab in the country, but every institution has internal regulation and discipline.
2:45 pm: AG: One of the arguments which has been advanced by the petitioners is that their right is traced independently to Article 19(1)(a) to wear the dress in exercise of right of freedom of expression. That argument is mutually destructive and contrary to present preposition.
2:40 pm: AG quoting from the case – “No affidavit has been filed by any person specially competent to expound the relevant tenets of Islam. ‘No reference is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow.”
2:30 pm: The session commences.
Major highlights (February 21)
4:49 pm: The court adjourns for the day.
4:47 pm: Court rejects Dar and states that, “It is not a public discussion where anyone can speak.”
4:46 pm: Senior advocate AM Dar asks court permission to quote verses from the Quran in response to AG Navadgi.
4:34 pm: The practice must precede the birth of the religion itself. The foundation of religion must be based on that or must be simultaneously there along with the birth of religion. It must be co-extensive with that religion: AG Navadgi.
4:32 pm: The burden rests upon the petitioners to prove that the claim is facthood: AG Navadgi
4:31 pm: Wearing hijab is essential practice is just a claim made by the petitoners: AG Navadgi.
4:23 pm: In the Shayara Bano case, triple talaq was struck down by the SC.
4:21 pm: If the fundamental character of the religion does not change by the abrogation of a practice, such a practice is not an essential part of religion: AG Navadgi quotes Chandrachud.
4:17 pm: Superstitious beliefs cannot be considered an essential religious practice: AG Navadgi
3:53 pm: In Sabari Mala judgment it was observed that “….it is only essential part of religion as distinguished from secular activities which is the subject matter fundamental rights. Superstitious beliefs cannot be considered essential part of religion,” said AG Navadgi
3:38 pm: In Shiroor Mutt case, it was observed that every mundane or human activity was not intended to be protected by Consitution under the guise of religion: AG Navadgi
3:34 pm: Discussing Shiroor Mutt’s case, Senior counsel Kamat argued that food and dress has to be considered part of religion: AG Navadgi
3:33 pm: It has been held that performance of pooja is not an essential practice: CJ Awasthi
3:28 pm: A way of testing essential practice is to see if the religion will be altered if the practice is removed: AG Navadgi
3:25 pm: In order to establish a right, it has to be – first proved as a religious practice, – then an “essential” religious practice. – then that it is not against public order, morality, health – and not against any other fundamental right.
3:19 pm: Justice Chandruchud said, “You have to show that your practice is essential to seek protection under Article 25.” AG Navadgi
3:17 pm: Article 25 will only discuss what is essential: AG Navadgi
3:10 pm: We don’t have to keep religion out of institutions. Just religious instructions. In the current context, religious symbols have to be kept out: AG Navadgi
3:02 pm: People either have a religion or don’t. It matters only if it manifests in practice. As far as conscience is concerned, it applies to people who don’t believe in faith or believe but don’t practice.
3:01 pm: Ambedkar suggested along with Alladi Krishnaswamy Iyer that conscience matters because agnostics and atheists don’t believe in faith: Justice Dixit
2:59 pm: Essential religious practice would not come under freedom of conscience: AG Navadgi
2:58 pm: Is essential religious practice also applicable to conscience?: Justice JM Khazi.
2:51 pm: In the Sabarimalai judgment, Justice Chandrachud observed that the court has to decide on matters of this nature (ie. religious).
2:50 pm: Let us say the institute is before the court, it could be argued that to “maintain institutional discipline it is necessary.” The petitioners would argue it violates Article 25. Hence, Article 25 has to be discussed in detail.
2:49 pm: Can the state government not issue directives to the institutions?
2:47 pm: We need to leave it to the discretion of institutes, that is the government’s stance: AG Navadgi
2:46 pm: As a matter of principle, Preamble of Karnataka education states, “We propose to foster secular image.”: AG Navadgi
2:41 pm: Your argument is that the government hasn’t placed any restrictions, but its the pre-universities decision: CJ Awasthi
2:40 pm: The discussion currently is whether the practice of hijab is embedded in the fundamental rights: Advocate general Navadgi
2:38 pm: The hearing commences.
Major highlights (February 18)
4:43 pm: Some petitioners lawyers express concern over hijab-clad women being made to remove scarf at the gate. They further state, “This was done to avoid a law and order problem but the ban is causing one.”
4:41 pm: “Will substantiate more on why hijab is not religious practice on Monday,” says AG.
4:39 pm: AG argues, “When Ambedkar introduced freedom of conscience in the Assembly, it was to assuage worries that freedom to propagate would result in the supremacy of one religion.”
4:35: “Certainly not sir. Conscience and religion are thus different concepts. Thus both are used in Article 18 of UDHR. Conscience is a choice. No one can be compelled to believe in anything otherwise,” argues AG.
4:34 pm: “You mean to say that the freedom of conscience is only for atheists?” asks Judge Dixit.
4:30 pm: AG Navadgi argues, “Article 25 has two parts: right to preach, practice, and propagate their religion and secondly, freedom of conscience. Rights can be enforced. Your freedom of conscience is your own and a state cannot enforce it. It was used for atheists.”
4:27 pm: Prima facie, the right under Article 25 speaks of abridgement and taking away rights. This (the hijab ban) speaks of regulating and restricting.”
4:22 pm: “During COVID, all religious institutions were closed for reasons of health. In every situation like that we have to discuss if it affects public order, morality or health,” says AG.
4:18 pm: As far as hijab being a religious practice goes, there is a distinction in Article 25 worth pointing out. In Article 25 (2), the state has the power to restrict or regulate any activity. If somebody exercises Article 25 (1), the court has to examine whether this affects public order, morality and health.
4:07 pm: “Whether elected representatives should enter the campus or not is another matter. In these circumstances, the government had to intervene.” said AG in response to a question posed by Justice Krishna Dixit.
4:00 pm: “The attack that the GO is irrational or is discriminatory against Muslim women is baseless as a plain reading of the same affects nobody’s rights,” says AG Navadgi.
3:51 pm: State has revisionary powers under Section 131. If in future some student or authority with a grievance that it might result in something, we may or may not take a decision: AG.
3:49 pm: The college development council is an extra statutory authority.
3:46 pm: “We have left the decision to college authority. Saying that the hijab ban is the state’s diktat and giving it a communal colour is ridiculous. The government order is innocuous,” says AG.
3:42 pm: “If the state wanted to argue that the hijab would be a threat to communal harmony, they could. But did not,” argues AG.
3:41 pm: “We do not want to involve in these matters. As it is a religious issue,” adds AG.
3:40 pm: AG Navadgi, “We (the State) have taken a conscious stand to let the College Development Council to decide the issue.”
3:38 pm: AG Navagi quotes Justice Dixit saying, “He had made an observation that orders must be read as they are, as a plain reading and not as a statute. I cannot put it in a better manner than what Your Lordships have said.”
3:33 pm: In the institution unrest continued, which led to another resolution by the College Development Committee on 31st January. In this resolution they say children should not wear hijab and if parents send girls with hijab disciplinary action will be taken: AG Navadgi.
3:19 pm: “What is the sanctity of College Development Committee under the scheme of the Act?” asks the bench.
Navadgi responds that “So far as how to locate CDC, I will bring it to Court notice with respect to Karnataka Education Act.”
3:15 pm: Navadgi discusses the uniform code in detail.
3:13 pm: “What is the rationality behind issuing the GO?” asks CJ.
3:07 pm: “Practice of hijab which has now been propounded must pass the test of Constitutional morality and individual dignity. Like it was employed in the Sabarimala case,” adds Navadgi.
3:05 pm: “The petitoners have argued against the government order and in favour of the right to wear hijab under Article 25 and Article 19 1A of Constitution. Mr Hegde and Mr Kamat made these submissions. I disagree and will answer these questions in the negative,” Advocate General Prabhuling Navadgi.
3:04 pm: Advocates for the respondents commence arguing.
2:47 pm: The bench remarks that the public should hear the respondents version as well.
2:43 pm: Senior advocate Ravivarma Kumar requests the court to suspend the live streaming for the case as it could trigger the Muslim women in question.
2:42 pm: Chief Justice remarks that the remaining petitioners wrap up their statements so that the respondents can start.
2:39 pm: The hearing commences.
Major highlights (February 17)
3:41 pm: The court adjourns. It will resume at 2:30 pm tomorrow.
3:29 pm: Advocate General Prabhuling Navadgi requests to be permitted to argue for the State tomorrow. Senior Advocate Sajan Poovayya appearing for Respondent colleges submits that he will argue after the Advocate General
3:26 pm: The court asks for Dar’s locus. He responds, “This is not a PIL. We are girl students studying in colleges and are likely to be affected by GO.”
3:20 pm: Senior advocate AM Dar starts arguing.
3:16 pm: Kulkarni remarks that the “banning hijab” may amount to banning of Quran.
3:13 pm: Lawyer quotes Lata Mangeshkar song “Kuch pakar kuch khona padta hain”.
3:09 pm: “My only request is that at least on Fridays (Jumma) and during Ramzan which is soon approaching, the girls should be allowed to wear hijab. This row is creating mass hysteria,” Lawyer Vinod Kulkarni
3:04 pm: Petition gets dismissed.
2:55 pm: The Bench deliberates on dismissing Kothwal’s petition on the grounds that it is not maintainable.
2:52 pm: “The actions of the state are not in line with the principles stipulated by international conventions,” says Kothwal
2:50 pm: Lawyer Rahmathullah Kothwal begins his statements.
2:49 pm: The hearing commences.
Major highlights (February 16)
4:40 pm: Bench announces that they will resume from tomorrow. The court adjourns.
4:26 pm: Muchhala states, “The fact that it has been done because of the opposition of some other students is also recorded in the government response and Order. It is partisan, totally unfair and falls under manifest arbitrariness.”
4:21 pm: Muchhala further asks, “Why were the parents not consulted before making the decision? What is the need to change clothing now anyway?”
4:19 pm: Muchhala refers to Shayara Bano vs Union of India.
4:13 pm: “Even if they wanted to do away with the hijab, is not reasonable to give the petitioners notice instead of arbitrarily imposing a rule?” asks Muchhala.
4:05 pm: Senior advocate Yusuf Muchhala starts presenting his case in petition number 4.
4:04 pm: Ravivarma Kumar concludes his argument.
4:03 pm: “If people wearing turban can been in the army, why is the hijab a politico-religious symbol sidelined?” asks Kumar.
3:55 pm: “We (the petitioners) are not permitted. We are not ever heard. We are made to stand at the gate. Can these people be called teachers?” adds Kumar.
3:45 pm: “The religion hasn’t been mentioned. They only said that the headscarf is prohibited by any religion,” says CJ Awasti.
3:42 pm: Kumar further asks, “A bangle wearer, a bindi wearer is not sent out of the class. Why only these girls?”
3:40 pm: “If there are hundred symbols, why is the government only picking on one?” questions Kumar.
3:38 pm: “Half or more of Muslims, Hindus and Christians wear religous medals. Most Hindu, Muslim and Sikh women cover their heads,” Kumar quotes from a research paper’s survey.
3:35 pm: “The hall mark of a democracy is to hold the government accountable,” states Kumar.
3:13 pm: Justice Dixit states, “Just because these are not spoken of in Karnataka education Act need not mean it might be permitted. It is true that it does not say hijab should be permitted or not permitted. But it has to be independently argued.”
3:00 pm: The college was constituted to deal with academic standards. Not with students discipline,” states senior advocate for one of the petitioners, Ravivarma Kumar.
2:45 pm: The hearing begins.
Major highlights (February 15)
5:01 pm: The court rejects Adv Tahir’s application, even as he says the petitioner cannot come all the way from Udupi to Bangalore every day.
Proceedings conclude for the day.
5:00 pm: It is provided in Civil Rules: Adv Tahir
This is a bad practice. Application has to be accompanied by affidavit sworn by petitioner. A lawyer cannot. We will not allow this malpractice: CJ Awasthi.
4:59 pm: A memorandum of facts can be sworn by counsel only on facts that are on record: Navadgi.
4:57 pm: Colleges are reopening tomorrow. I have filed an application yesterday: Kumar
That application is defective. We can’t respond to it: AG Navadgi.
4:54 pm: So you are saying College Development Committee is not defined under the Act: CJ Awasthi
It is not an authority under the Act: Kumar
We will continue tomorrow: CJ Awasthi.
4:53 pm: Kumar referring to Karnataka Education Act.
It is my submission that College Development Committee is an extra-legal committee contrary to the scheme of the Act and the letter of the rule: Kumar.
4: 49 pm: The sum and substance is there is no ban on hijab. The prescription is CDC shall prescribe the uniform: Kumar.
04: 46 pm: Kumar reading out GO
The govt itself has said they have not decided on the uniform but has constituted a high power committee to go into the question: Kumar.
Kumar referring to State of Objections.
The government is yet to take a decision. It has constituted a high level committee which will examine the matter. As of now govt has not prescribed any uniform or prohibited wearing of hijab: Kumar.
04: 36 pm: Let us first understand the status of the petitioner. Has she filed a memo for withdrawal of the other petition: CJ Awasthi.
Yes: Ravivarma Kumar.
04: 33 pm: Advocate General says he wants to point out a factual aspect. AG says Kumar’s client has filed two petitions.
The same petitioner cannot urge same questions of law based on same facts through another counsel: AG.
04:32 pm: Senior Advocate Ravivarma Kumar commences arguments for Smt. Resham.
04:29 pm: Kamat concludes
04:26 pm: This is not a case of passengers in the train. This is a case of students wanting to access education and State is saying we will not permit you. I raised proportionality in that context: Kamat.
4:23 pm: If a passenger is not allowed inside the train because he does not have a ticket, that is not expulsion: Justice Krishna S Dixit.
4:19 pm: Assuming you have the power to prescribe and enforce uniform, where is the power to expel students from school because they have not adhered to that uniform, The doctrine of proportionality will come in: Kamat.
4:17 pm: We are not Turkey which says no religious symbols can be displayed in public. That Hijab ban was upheld by court due to that. But their Constitution is completely different. Our Constitution recognises different faith: Kamat.
04:15 pm: Kamat reads out Aruna Roy judgment which spoke about Sarva Dharma Samabhava.
04:10 pm: Kamat referring to doctrine of heckler’s veto
As per the same heckler cannot be allowed to veto a fundamental right and Justice Chandrachud and Gulam Abbas Ali have recognised the doctrine in India: Kamat.
4:05 pm: Kamat referring to the judgment of Justice DY Chandrachud wherein he talks about growing intolerance in the context of the West Bengal government stopping the screening of the movie Bhobishyoter Bhoot.
3:45 pm: The Court of South Africa said that display of religion and culture is not a parade of horrible but fragrance of diversity that will only enrich our country: Kamat.
3:41 pm: What is the ratio of this judgment?: Justice Krishna Dixit
The conclusion is in para 112 which said the expulsion of the girl from school cannot be sustained: Kamat.
3:41 pm: The Constitutional Court of South Africa said that it is not for the Court to tell the girl that she is wrong because others do not relate to that religion or culture in the same way: Kamat reading out from the judgment.
3:26 pm: Kamat refers to another judgment of the Constitutional court of South Africa.
The issue was whether a Hindu girl with roots in South India could wear a nose ring in school.
The argument of school was it will lead to “parade of horrible”: Kamat.
3:22 pm: The judgment said that even though there was a prescribed uniform, the person who asked for exemption from the same should be accommodated and not punished: Kamat.
3:15 pm: On the next aspect of other jurisdictions/ countries apart from Muslim countries which have gone into hijab and whether it is a right, we did some homework: Kamat.
3:13 pm: If it is sanctioned by our scriptures, Vedas, Upanishads, Your Lordships are duty-bound to protect it. If not Article 25 won’t apply: Kamat.
This is not a display of religious identity. It is a practice of faith. To counter that, nobody wears a shawl. You will have to show that it is not a display of religious identity alone but something more: Kamat.
03: 08 pm: As per the guidance of the Supreme Court, if a religious practice is abhorrent then the State on grounds of public order, health or morality can stop it.
But in this case, this is an innocuous practice, wearing of headscarf: Kamat.
3:03 pm: In that case a law was brought about to prevent excommunication practice among Dawoodi Bohra community. It was struck down saying it is essential religious practice: Kamat.
Neither under Article 25(2)(a) or (b) can ERP be curtailed except under public order, morality or health: Kamat.
3:01 pm: Can essential religious practice be curtailed for reform under Article 25 (2)?
That is answered by the Constitution Bench decision of the Supreme Court in Sardar Syedna Taher Saifuddin vs The State Of Bombay: Kamat.
2:58 pm: It is categoric that Sarvajanika Suvyavasthe is public order and the use of the same in GO cannot have any other meaning: Kamat.
The second issue that fell from Bench yesterday was why we are going only on Article 25(1) and not Article 25(2).
2:49 pm: Kamat refers to the Kannada term “Sarvajanika Suvyavasthe” used in GO and the submission of the AG that it does not mean ‘public order’.
I had to go to the Kannada translation of the Constitution and wherever public order is used, it is Sarvajanika Suvyavasthe: Kamat.
2:40 pm: As Advocate, Kamat argues that Muslim girls of government colleges, that do not have a uniform are being forced to remove their hijab despite the court’s directions that were specific to schools that have a uniform.
CJI Awasthi directs an application for clarification to be filed.
Advocate General Prabhuling Navadgi: We cannot respond to vague allegations. Let him file a proper application.
Major highlights (February 14)
4:41 pm: The court is adjourned and will resume on February 15 at 2:30 pm.
4:40 pm: The court notes down the list of advocates speaking in favour of the petitioners.
4:26 pm: The government order issued by the state refers to “public order”.
4:25 pm: Bench asks Kamat why he refers to “public order” when the state is yet to present their case.
4:16 pm: “The state should make a conducive atmosphere for the exercise of fundamental rights,” says Kamat.
4:14 pm: Kamat notes, “Freedom enshrined in the Constitution is subject to public order. Public order is state executive and state actors’ responsibility.”
4:08 pm: “Even keeping aside whether the hijab is essential practice, state is duty bound to ensure freedom of conscience,” notes Kamat.
4:05 pm: Since the Quran answers questions regarding the headscarf, we need not go to to any other authority and this would be protected under Article 25 of the Constitution.
3:57 pm: Kamat states that the College Development Committee has no statutory basis as it is formed under circular which does not pass muster for restricting public order.
3:48 pm: Kamat refers to Bjioe Emmanuel case and argued that the present case is totally covered by the judgment in national anthem.
3:43 pm: Kamat notes that he is unaware as he is not a repository of all knowledge. But as of now my research shows, there is no authoritative pronouncement saying it is not an essential practice of Islam.
3:42 pm: Justice Dixit asks whether there are any decisions by court of any other Islamic country other than Malaysia taking a contrary view on hijab as essential to Islam.
3:34 pm: Kamat refers to a Madras High Court judgment which said wearing purdah is not essential but headscarf is. The judgment referred to a Malaysian high court and other Supreme Court judgments.
3:21 pm: Kamat answers affirmatively. “It is my case that the petitioners have been wearing this since our admission to the college. We have mentioned the same in our petition,” he adds. Furthermore, notes Kamat, the students have been wearing the hijab in the same colour as the school uniform.
3:20 pm: Chief Justice Awasthi asks the petitioners lawyer, Devdutt Kamat if the students have been wearing headscarf for a considerable period of time
