Thread by @LawBeatInd

#Karnataka High Court to hear case of Resham Farooq, filed through her brother seeking relief on account of alleged denial by the Government PU college for 8 girl students allegedly on account of wearing Hijab before a bench of Justice Krishna Dixit #KarnatakaHijabRow

Devdatt Kamat, Sr.Adv requests for listing of fresh writ petition which was moved yesterday challenging the GO. Court permits for listing of this matter with other similar matters . #KarnatakaHijabRow #karnatakahijab

AG for #Karnataka says he is ready to argue #KarnatakaHijabRow
Abhishek Janardhan counsel for petitioner: I seek for a short date for matter milords as there are other cases coming.
J
ustice Dixit: The quantity of matters does not matter,if we decide one matter, the rest is good

Advocate General Prabhuling Navadgi: The State is ready and keen to argue the #KarnatakaHijabRow #karnatakahijab

AG: We have filed our statement of objections

Janardhan: The present WP have sought not to interfere with the fundamental right of wearing hijab. #KarnatakaHijabRow

Court: Others may have tea and come. This will take time. We will go by reason and law here. Keep all emotions outside. #karnatakahijab

Court: I will go by the oath of the constitution. I do not have interest in such matters. But the CJI has asked me to do this I am doing this #KarnatakaHijabRow

Counsel speaks in court. Its inaudible #karnatakahijab

Court: He says, we can put this controversy to an end, we will wear Hijab for 2 months, let the policy come and after that we will follow the policy decision #KarnatakaHijabRow

Court: AG can you reply.

AG: The point just does not involve one person. Larger question is involved

Court: Generally, I open WhatsApp and I received 100s of messages!! Thankfully my phone did not blast! #KarnatakaHijabRow .

Kamat: I beg to appear in another WP, in the meanwhile if the State can show some generosity. These students can continue to wear this, let them write the exam #KarnatakaHijabRow

AG: We have not done anything. There is no question to say the State should show generosity #KarnatakaHijabRow . We have given the power to CDC (College Development Community) , if students want any exception, they should go there.

Courts: AG says this is not pertaining to just fe students. Let us start these arguments. #KarnatakaHijabRow . You all assist me, if in the meanwhile the government explores suggestions, well and good

Kamat: There is only one petition which challenges the 5th February order in #KarnatakaHijabRow , I will take 10-15 minutes. Please see the recitals.

AG: What’s the name of the petitioner ? #karnatakahijab

Kamat: Lordships may permit me to read the notification. My Kannada is not as good. #KarnatakaHijabRow

Court: Can someone else read?

Someone in the court reads the notification.

The #KarnatakaHijabRow notification dated 5th February is now being read in its entirety in the court.

Kamat: Therefore, this entire decision is hinged on 3 decisions of some other HCs. The State says as per this decision there is no fundamental right to wear #Hijab

Court: What they say if this is prescribed, it does not result to breach of fundamental rights #KarnatakaHijabRow

Kamat: The first submission, wearing a head scarf is an essential part of Islamic religion. #Hijab

Kamat: it is prescribed in the Holy Quran. #KarnatakaHijabRow

Court records his submissions.

Kamat: The subset is that all the 3 decisions which they sight they dont deal with this issue at all. These decisions are totally irrelevant. Right to wear a dress is a facet 19 (1)A

Kamat: Unless the State justifies this on public order, it cannot be done so. Restriction can only be in terms of 19 (6) of the constitution. Refers (2014) 5 SCC 438 para 169 #KarnatakaHijabRow

Kamat: This also violates Article 21 is my next proposition #SupremeCourt has held

In Puttaswamy upholding the right to privacy #KarnatakaHijabRow

Kamat: Lastly, the State has no authority to comment on this. There is no regulatory power under Karnataka Education Act #KarnatakaHijabRow #Hijab refers to Sections 7 and 133

Court: Come to the first proposition. Come to Sura of Quran #KarnatakaHijabRow . Take me to the proposition of Quran.

Court gets a copy of the Holy Quran. Is there any dispute on the publication

AG: I am not able to see the entire title and the name of the publisher.

Order:
This court exhibit a copy of Holy Quran to the members of the bar.

AG: One request, my instructions are that there are different versions of translations. Can I look into it as well. #KarnatakaHijabRow

Court connection lost to all counsels #KarnatakaHijabRow

Kamat: Milords, I have reproduced the sections of Holy Quran #KarnatakaHijabRow

Kamat reads from the quote

Kamat: Quran is followed by Hadid.

Court: Please tell me your publication as well. Where holy scriptures are cited, court should ascertain the authentic version #KarnatakaHijabRow Therefore you have to give the source to us

Kamat: Verse 24.31 says so milords, it has also been quoted on similar lines in judicial dicta. Also 24.33 milords. #KarnatakaHijabRow I am quoting 2 verses, which speak of #Hijab milords.

Kamat: The source is Quran.com, which is the translated verse. It is accepted. The translator is Abdul Kaleem #KarnatakaHijabRow

Court: Give in a small memo, please ensure it is signed.

Kamat: Sure milords. These have been interpreted in several judicial decisions #KarnatakaHijabRow I will refer AIR 14 Ker 115.

Court asks for the book

Kamat: If I can invite the court’s attention to this compilation. Can it be handed over to the court?

Court asks for the verses from the Holy Quran to be read loudly one of the counsels. #KarnatakaHijabRow

Verses of the Holy Quran pertaining to to #Hijab being read in the court . #KarnatakaHijabRow .

Court: So with family and husband they can be without #Hijab . But when outside they need to wear it. So are all Quranic injunctions essential religious practice? Is there an except

Kamat: This judgment will throw some light milord. It pertains to All India Pre Medical Exam where there is dress code. They challenged it in this case milords. #KarnatakaHijabRow .

Kamat reads para 4

Kamat: In essence, when there is a conflict between Freedoms guaranteed and what the State thinks, it is for the courts to resolve the controversy. State cannot sit in judgment over what is an essential facet of religion #KarnatakaHijabRow

Court: Its not that State cannot decide what is essential or not. We have not adopted separation of powers in strict sense. While State evolves a policy it will make assumptive conclusions, it is for the citizen to challenge #KarnatakaHijabRow

Kamat: The state has taken a decision and it is before this court for decision #KarnatakaHijabRow

Court: Read para 5 loudly now. #HijabRow

Kamat: It means that as a community, we cant hold the State at ransom. As a democracy, no religion can hold the State’s function to ransom. I bow down to that milord. #HijabRow #KarnatakaHijabRow . If it is an activity which fall in the State domain, it cannot be debarred

Kamat: I will read Para 7 now milord. I will not read everything because your lordships time is limited.

Court: No you have abundant time. Read as much as you want

#HijabRow #KarnatakaHijabRow

Kamat: I will straight away come to the conclusions milord.

Court: So essential part of the religion we can practice?

Kamat: Yes milord, it ultimately boils down to that #KarnatakaHijabRow #HijabRow

Kamat: What constitutes an essential practice is to be construes from religious considerations alone and not on secular notion. #HijabRow #KarnatakaHijabRow

Kamat continues reading from the judgment

Court: Come to para 19.

Kamat reads it #HijabRow #KarnatakaHijabRow

Kamat: I am relying upon 24.31, which is clear milord.

Court: This 25 you were reading. I want to know the meaning. Does it say hands and face can be shown?

Kamat: That seems to be the interpretation #HijabRow #KarnatakaHijabRow

Kamat: There are 5 kinds of activities which are essential religious practices milords. There are punishment contemplated milords. #KarnatakaHijabRow #HijabRow

Kamat continues reading the Kerala High Court judgment #HijabRow #KarnatakaHijabRow

Kamat: I will read Bijoy Emmanual for my satisfaction after I read this judgment milords.

Court: Alright.

Kamat: This case upheld the the right of candidates to wear the #Hijab . The decision was challenged before the Division bench and it was upheld. The @cbseindia29 had come out with a notification asking students wearing religious dresses to come one hour earlier #karnatakahijab

Kamat: I am going to read another judgment milords. This WP is 35293/2018, this is the decision that GO refers to say that Kerala HC noting that #Hijab is not an essential religious practice. #KarnatakaHijabRow

Kamat: Here the issue was not about wearing #Hijab in a State institution but in a Christian Minority institution #KarnatakaHijabRow It was incidentally by the same judge milords.

Court: Can we continue after lunch.

Kaleeswaram Raj, Sr.Adv: May I make submissions

Raj: Subject to your lordships indulgence, can I move an intervention? I have written about this recently milords. The submissions maybe useful in one way or the other

Court: Most Welcome. Prophet says “The ink of a scholar is holier than the blood of a martyr.” #HijabRow

Court: Justice Mushtaq is one of the most competent judges of the High Court in the country. #KarnatakaHijabRow #HijabRow

Court asks counsels to come by 3 PM so that other matters can be completed. #HijabRow

AAG requests some people to be removed from the ZOOM as the maximum number of participants have been reached. #karnatakahijab #HijabRow

The AG is unable to join because of this reason. #karnatakahighcourt #HijabRow

Court requests some people to quit the zoom call to enable to AG to join #karnatakahijab #HijabRow

Kamat: I was on page 39 of the compilation milords, its the Kerala HC judgment by Justice Mushtaq. Before I start, I want to say this is in the context of the religious minority institution. Their rights are different from the government colleges #karnatakahijab

Court: What is the legal sanction ?

Kamat: Article 30 protects them specifically milords.

Kamat reads from the judgment

#HijabRow #karnatakahijab

Court: It was a case where 2 fundamental rights were in conflict with each other?

Kamat: Yes milord, Article 25 right will have to be balanced with the Article 26 rights.

#HijabRow #KarnatakaHijabRow

Kamat: My submission is that this case does not support the state. It was in the context of the right of a minority institution. This decision of GO is inapplicable #KarnatakaHijabRow #HijabRow

Kamat was reading the judgment of Kerala HC in case of Fathima Thanseem Vs State of Kerala.

Kamat: The first judgment relied upon was Fatima Hussein Syed of Bombay HC. The student in this case was that she was studying in a girls school #KarnatakaHijabRow #HijabRow

Kamat reads the judgment.

Court: Where is the findings.

Kamat reads the findings. #KarnatakaHijabRow #HijabRow

Kamat: text and context of the judgment is totally in this case. Judgments cannot be read like theorems, context is important. 2 judgments in the GO are totally inapplicable

#KarnatakaHijabRow #HijabRow

Court: One of your colleagues your says whether para 9 distinctively stated by the learned judge be part of the ratio?

#KarnatakaHijabRow

Kamat: This is not a girl’s section, it was an all girl’s school milord.

Kamat: The 3rd decision cited in the GO is on page 4. It is on teachers being prescribed a dress code. There is no argument on #hijab essential practice. Its on whether uniforms can be prescribed for teachers #KarnatakaHijabRow

Kamat: It has nothing to with Article 25. #HijabRow #Hijab #KarnatakaHijabRow

Kamat: Therefore the government in the GO that these decision lend support to it. Therefore the edifice of the last paragraph of GO which says that wearing #hijab is not a fundamental right is flawed #KarnatakaHijabRow

Kamat: the last authority on the #hijab issue is the DB judgment of Madras HC. The EC directed that photos of voters need to be printed and published. Some people contended that it would violate article 25 #KarnatakaHijabRow . The court went into this, cited various authorities.

Kamat: it has held that #Hijab is an essential practice. #KarnatakaHijabRow .

Kamat reads from the judgment.

Kamat: The court upheld the decision of EC , however it said wearing #Hijab cannot be done away with. It is an essential part and parcel of the Islamic faith #KarnatakaHijabRow

Kamat: The last judgment of Article 25 I want to cite is Bijoy Emmanuel.

#KarnatakaHijabRow #Hijab

Kamat: This is the Jehovah’s witness case milords. If I can place reliance on para 17 milords. The facts here pertain to national anthem

Court: Much of law appears to be flowing from #Kerala starting from Kesavananda Bharati from now #KarnatakaHijabRow #Hijab

Kamat: This is very similar to the case in hand milords. These children came to school wearing #Hijab till now and suddenly someone took notice. #KarnatakaHijabRow

Kamat: Personally speaking, I may disagree, I would say why young children should wear #Hijab , but my beliefs are irrelevant. It is not for us to sit in judgment of the beliefs. That is what the court has held. We have been quietly practicing our faith

Kamat: To give it a colour of public order is an attempt to put the cart before the horse. Everything can be given the public order colour. #KarnatakaHijabRow #HijabRow . Can our religious freedom be on vague conception of public order?

Kamat: The State’s justification that it is be done on the public order is to be examined on the lens with the robust fundamental right. #KarnatakaHijabRow #HijabRow

Court: There was an order of Justice Rohinton Nariman?

Kamat: I will shortly place it milord. I will test the argument of public order.

Court: there was no problem till Adam & Eve ate the apple in Eden Garden #KarnatakaHijabRow #HijabRow

Kamat: If it is a public order issue, it should be an issue everywhere. It cant be an issue just when they come to school. The threshold of public order is very high milords. #KarnatakaHijabRow #HijabRow

Court: Is it your proposition that the public order issue should have a universality? It cant be confined to a particular region, place etc.

Kamat: I am not putting it in a straight jacket formula. There are some aspects, there was no issue till recently #KarnatakaHijabRow

Court: Support if I carry a baby of swine to a CP in Delhi, if I carry it to a Mosque, Church or temple it will become a public order issue. #KarnatakaHijabRow #HijabRow

Kamat: All I am saying, is that the State has to place certain materials on record to establish that it is a public order issue. #HijabRow #KarnatakaHijabRow . The court has to scrutinise the decision

Court: We dont have issue with this. The #supremecourtofindia has already answered it already in VG Rao, Chitaman Rao etc.

Kamat: The material from the face of it is not discernible #KarnatakaHijabRow #HijabRow

Kamat: This GO has been issued under sections pertaining to curriculum of the act. How the State will justify this. I will place a judgment on how public order is not synonymous to law and order.
#KarnatakaHijabRow #HijabRow
Kamat reads the judgment

Court: Can you read Justice Nariman’s judgment ?

Kamat: May I just complete this before I advert to that judgment

#KarnatakaHijabRow #HijabRow

Kamat: Milords, Justice Nariman’s judgment is in the context of preventive detention. It may not be directly applicable wrt facts.

#KarnatakaHijabRow #HijabRow

Kamat: Can I now refer to a judgment on #supremecourtofindia on how Section 144 has to be enforced milords.

Kamat reads from the judgment.

#HijabRow #KarnatakaHijabRow

Court: What you say is State is exercised its power in a manner in which people are able to exercise their fundamental rights #HijabRow #KarnatakaHijabRow

Kamat: If some goons are creating disturbances, it is the duty of the State to ensure that the rights of these school going girls are protected. #KarnatakaHijabRow #HijabRow . We can understand if it is something violent, it would be an issue of public order

Kamat: A girl going to a school wearing a head scarf , how can it be a public order issue milords? #HijabRow #KarnatakaHijabRow

Kamat: May I read 2020 12 SCC 436, just one paragraph milords. This is beautifully put by Justice DYC #HijabRow #Hijab

Kamat: I will end with just one judgment. We all talk about a secular state, in certain democracies there is negative secularism. It means I cannot display my religious identity in public. In contra distinction to ours #KarnatakaHijabRow

Kamat: Our secularism is based on the fact that all religions are true. The State respects all religions #KarnatakaHijabRow #HijabRow

Kamat reads a #SupremeCourt judgment by Justice Dharmadhikari

Kamat: The courts have time and again emphasised the concept of positive secularism which this court has time and again laid down. Yesterday these students wearing #Hijab were segregated and made to sit in a separate class. #KarnatakaHijabRow

The court discusses Brown Vs Board of Education #KarnatakaHijabRow #HijabRow

Court: Any Indian judgment referring to doctrine of Equal but Separate ?

Kamat: Untouchability is not completely abolished. This is a form of religious apartheid #KarnatakaHijabRow #HijabRow

AG objects to it, asks Kamat to stick to law.

Court: Is Delhi very hot?

AG objects to recording the segregation in classrooms.

Court “Even if he says High Court should be demolished it should be recorder.”

AG says my objection may also be recorded
#HijabRow #KarnatakaHijabRow

Kamat: This is also protected under Article 19 (1) (A) I will cite one judgment for that milords. I will read the paras, just two or three submissions more milord.

#HijabRow #KarnatakaHijabRow

Kamat refers to National Legal Services Authority Vs UOI saying people have right to dress as they please.

Court “Can I then ask my brother judges to dress as they please?"

Kamat: There can be restriction milords #HijabRow #KarnatakaHijabRow

Kamat makes submissions on the technicalities of GO under the Education Act of 1983. “This pertain to syllabus, none of these have anything to do with dress milords.” Refers to Sections 7 and 133

#HijabRow #KarnatakaHijabRow

Kamat: There are guideline of the education department saying that college cannot enforce uniform. This was the policy and suddenly they have come up with these orders.

Court: Who is the author of these intructions?

#HijabRow #KarnatakaHijabRow

Court refuses to accept the guidelines. #HijabRow #KarnatakaHijabRow

Kamat summarises the arguments. #HijabRow #KarnatakaHijabRow

Kamat: I am grateful that your lordships have given a patient is hearing. That is all I wanted.

Court: Do you not want any order from me?

#Hijab #KarnatakaHijabRow

Kamat: I request the court to permit these students to attend college , they have the right to education under Article 21.

AG: Lordships may hear me tomorrow.

Kaleeshwaram Raj: I will take 15 minutes.

#Hijab #KarnatakaHijabRow

AG: There are agitations and some sort of law and order situation is seeking to be fanned up. I seek an interim order that till the issue is resolved by the court that there cannot be agitations. #Hijab #KarnatakaHijabRow

Kamat: There are videos being circulated that girls wearing #Hijabs are being chased by girls #KarnatakaHijabRow

AG: All parties should refrain from protests, these are dangerous statements being made. State is there is control, we won’t allow any such thing to happen

Court: Unfortunately when I was student, such things did not happen. I would have remained away from school and college #Hijab #KarnatakaHijabRow

AG reads the judgment of #supremecourtofindia in farm protest to grant stay of any protests

Kamat: To injunct all people will be problematic. The State wants to politically gain from this because there are protests planned tomorrow. Some people are being harassed in the street #Hijab #KarnatakaHijabRow

This order will have repercussions says Kamat

Court: Leave the court and judges to the peace, these agitations, students attacking students, people who are dressed as students attacking others. These things disturb my decision making. #Hijab #KarnatakaHijabRow

Order:
LD.AD passionately submits that lot of “Galatta” is happening in several institutions even when the court is hearing this matter, this should be halted. In support of his submissions he reads out Kisan Mahapanchayat VS UOI. #Hijab #KarnatakaHijabRow

Ld.Counsels appearing for the petitioners are broadly in agreement with AG. However, he is not sure if the court can pass a blanket order banning agitations when they are not parties before the court. Having heard the parties and pending further hearing the matter

Hopefully which should be accomplished before long, this court requests the student community and public at large to maintain peace and tranquility. This court has full faith in the wisdom and virtue of public at large and it hopes same would be put to practice. #Hijab

Matter will continue tomorrow.

[BREAKING] Hijab Row - Karnataka High Court requests student community to maintain peace & tranquility, not indulge in agitations @sai_prasad_law reports
#KarnatakaHijabRow #Karnataka
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