Thread by @barandbench

Karnataka High Court to hear petitions challenging ban on hijab in colleges.

A 3-judge Bench of Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi will hear the matter.

Track this thread for live updates.

#HijabBan #HijabControversy #KarnatakaHighCourt

The High Court had on February 10 barred students from wearing hijab, bhagwa and other religious garments in educational institutions which have a prescribed dress code/ uniform.

#HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Read story here: bityl.co/Auxt

Hijab Ban: Hearing before Karnataka High Court Full Bench

#HijabBan #HijabControversy #KarnatakaHijabRow #KarnatakaHighCourt

Read LIVE UPDATES from court here: bityl.co/Auyd

Bench assembles.

Hearing commences.

#karnatakahighcourt #HijabBan

CJ Ritu Raj Awasthi says our sincere request to media is to be more responsible. We are not against media, our only request is be responsible.

#Karnataka #KarnatakaHijabRow #karnatakahighcourt

Counsel Subhash Jha says his request is parties should restrict their submission to what is in the rule book and not give communal colour.

#karnatakahighcourt

Sr. Counsel Devadatt Kamat commences arguments for petitioner.

The Government Order (GO) is in the teeth of Article 25 and reflects total non-application of mind: Kamat

#KarnatakaHighCourt #HijabBan

Kamat reading out GO.

He says GO says two things:

1. Wearing of hijab not protected by Article 25;
2. They are leaving it to College Development Committee to decide whether any exception should be made for hijab.

#KarnatakaHijabRow #karnatakahighcourt

Point no. 1 is totally incorrect. Leaving it to college committee is totally illegal. Public order is State's responsibility: Kamat

As per GO, it is some committee with MLA which will decide whether to exercise fundamental right. This is totally impermissible: Kamat.

#KarnatakaHijabRow #KarnatakaHighCourt

CJ Awasthi: The question is whether Article 25 is absolute right or subject to restrictions.

#KarnatakaHijabRow #KarnatakaHijabControversy

Kamat: Article 25 is not subject to general reasonable restrictions like in Article 19. The restrictions which can be imposed is mentioned in Article 25 itself - public order, morality, health.

#karnatakahighcourt #KarnatakaHijabControversy #HijabBan

What is public order? CJ Awathi.

There is a concept called heckler's veto.
If I am walking on street and someone heckles me, that cannot mean State can stop movement on streets saying it affects public order: Kamat.

#karnatakahighcourt #KarnatakaHijabRow

We are trying to understand whether by this GO, the State has restricted Article 25 or not: CJ Awasthi.

#KarnatakaHijabRow #Karnatakahighcourt

The State has a positive duty to ensure people can exercise their fundamental rights. If certain sections of the society don't want other sections fundamental rights to play out, is no ground to restrict fundamental rights of that section: Kamat.

Whether by this GO, is there any restriction on fundamental rights: CJ Awasthi.

#KarnatakaHijabRow #HijabControversy

The GO relies on certain High Court rulings. It is their (State's) understanding that it is not a violation: CJ Awasthi.

It is the wrong understanding and I am challenging it: Kamat.

#karnatakhighcourt #HijabControversy #HijabBan

Before we go on to it, let us understand Article 25: CJ Awasthi.

Kamat reads out Article 25.

Aside from public order, health and morality, the State can make law restricting any economic, financial, political or other secular activity which may be associated with religious practice: Kamat

#KarnatakaHijabRow #KarnatakaHijabControversy

Kamat now referring to Kerala High Court judgment which was relied upon by GO. It dealt with whether hijab can be allowed for a student attending medical entrance exam.

Kamat reading out from the Amna Bint Basheer judgment of Kerala High Court. indiankanoon.org/doc/177048901/

There is a specific injunction based on verse 31 as per which modesty has to be protected: Kamat relying on Kerala HC judgment

#HijabControversy #HijabBan #KarnatakaHijabControversy #karnatakahighcourt

There was lot of talk on media how I as Hindu could argue this. I am only doing my duty as counsel by reading these out. So I concur with Your Lordships that media should be responsible: Kamat

#HijabControversy #karnatakahighcourt

If a believer thinks a practice is essential to his faith and that practice is innocuous and does not infringe on anyone's freedom, then in that context, the test of essential religious practice will not arise: Kamat

#HijabControversy #Karnataka

Is it your case that these students have been wearing head scarf and practicing it for considerable time: CJ Awasthi

I am grateful for this question. It is my case that we have been wearing this since our admission to the college. We have mentioned it in our petition: Kamat.
#HijabBan #HijabControversy

And they have been wearing it of same colour as uniform. It is not our case that we will wear some other colour. We want to cover our heads using headscarf of same colour as that of uniform: Kamat

#KarnatakaHijabRow #KarnatakaHijabControversy #karnatakahighcourt

Kendriya Vidyalayas even today permit by a notification female muslim students to wear headscarf of same colour as uniform: Kamat

#HijabBan #HijabControversy #KarnatakaHighCourt

Kamat reading out from Madras High Court judgment in Ajmal Khan which said wearing purdah is not essential but headscarf is. The judgment referred to a Malaysian high court and Supreme Court judgments.

Is Malaysia secular country or theistic country: Justice Krishna S Dixit

Definitely a theistic country: Kamat.

#HijabControversy #HijabControversy

Kamat now dealing with the 2018 Kerala HC judgment in Fathima Thasneem.

That judgment was in the context of Christian minority institution: Kamat.

#Hijabrow #KarnatakaHijabRoa

It is absolutely correct judgment because private minority institutions have freedom to prescribe its standards: Kamat.

#KarnatakaHighCourt #HijabControversy

Justice Dixit asks whether there are any decisions by court of any other Islamic country other than Malasyia taking a contrary view on hijab as essential to Islam.

#HijabBan #KarnatakaHijabRow #KarnatakaHighCourt

I am not aware of. But I am not a repository of all knowledge. But as of now my research shows, there is no authoritative pronouncement saying it is not essential practice of Islam: Kamat

The second judgment cited by GO is Bombay HC judgment but this does not help State government because it is rendered in the context of all girls section: Kamat

#hijabban #KarnatakaHijabRow #KarnatakaHighCourt

Hence, the injunction in Islam that will not be violated: Kamat.

#HijabControversy #HijabBan #KarnatakaHijabRow

Thus, these judgments have to be seen in the context of facts.

The third judgment cited by GO is a Madras HC judgment. This has nothing to do with Article 25: Kamat

This judgment does not have one word on Article 25 or headscarf. This was a case where uniform was prescribed for teachers and whether the same was permissible under the Act and under contract with teachers: Kamat.

Relying on this decision by GO is a fatal error: Kamat.

Kamat now moving on to judgments which he is proposing to rely on.

First judgment Kamat refers to is of the Shirur Mutt case.

indiankanoon.org/doc/1430396/

He refers to how essential practice can even extend to food and dress. This was settled by Supreme Court way back in 1954 in the Shirur Mutt: Kamat

#HijabControversy #hijabban

Personally I may think headscarf is very regressive. But it has to be looked at from the point of view of the believer: Kamat

#HijabControversy #KarnatakaHijabRow

Kamat refers to Bjioe Emmanuel case. The present case is totally covered by the judgment in national anthem: Kamat.

The students in the present case have been wearing hijab for years together: Kamat placing relying in Bjioe Emmanuel

#HijabControversy #KarnatakaHijabRow

indiankanoon.org/doc/1508089/

My argument is College Development Committee has no statutory basis. It is formed under circular which does not pass muster for restricting public order: Kamat

#Karnataka #KarnatakaHighCourt #HijabControversy

There is no law for social welfare and reform which prescribes such measures.

As far as Article 25(2) exception is concerned, the College Development Committee has no statutory basis: Kamat.

State has power to regulate any economic, financial, political or other secular activity which may be associated with religious practice for social welfare: Kamat

#HijabControversy #KarnatakaHijabRow

Even essential religious practice? Is essential religious practice absolute or susceptible to regulation by law: Justice Krishna S Dixit.

#HijabControversy

Article 25(2) allows State to regulate religious practice economic, financial, political or other secular activity and not core religious practice: Kamat

Core religious practice is under Article 25(1) which is subject to public order, health and morality: Kamat

#HijabBan #KarnatakaHijabRow #KarnatakaHighCourt

So a core religious practice can be regulated by State if it offends public order, health and morality: Kamat

#HijabBan #KarnatakaHijabRow

Kamat says Supreme Court has provided for three restrictions:

- Public order, morality and health
-Other provisions of Part III
- Article 25(2).

#HijabBan #KarnatakaHijabRow

Supreme Court, therefore, held in Bijoe Emmanuel that expulsion of children for not singing national anthem was illegal: Kamat

Kamat now referring to Shayara Bano judgment. He reads out Justice Kurian Joseph's concurring opinion which held that if Islamic scriptures say that a practice is mandatory, then court should allow it.

#hijabban

In that case, they said triple talaq is not there is Quran and therefore it was struck down: Kamat

Is everything stated in Quran essential religious practice: Justice Krishna S Dixit

I am not saying that: Kamat

#HijabBan

I would not like to comment on the larger issue of whether every tenet prescribed in Quran is ERP because it does not arise for consideration of Your Lordships: Kamat

Your Lordships have also time and again held that in judicial review, your lordships won't enter into larger canvass: Kamat

#HijabBan #KarnatakaHighCourt

The Supreme Court in that judgment held that what is bad in Quran cannot be good in Shariat: Kamat

#HijabBan #KarnatakaHighCourt

Since the Quran itself says so as far as hijab is concerned, we need not go to any other authority:m Kamat.

#HijabBan #KarnatakaHighCourt

I have not gone into Essential Religious Practice test (ERP) in deep because it is not needed in here. This is because ERP comes in when a practice affects anybody else's rights or is so abhorrent or despicable. That is not the case here: Kamat

#HijabBan #KarnatakaHighCourt

Kamat now referring to GO.

The College Development Committee - I will call it MLA committee - will today decide what is public order: Kamat

Public order is an executive function not of an MLA committee: Kamat

Are not MLAs aware of Constitutional provisions? They will do according to it: Justice Krishna S Dixit

This is an extra-legal committee outside the paradigm of the statute: Kamat

I can understand the State doing it. But can a committee do it.

The GO does not say about hijab. It only speaks about the uniform. That is provided under the Act: CJ Awasthi.

#HijabBan

The legislators opinion can be taken by State but can they be sole repository of power to restrict freedom which is domain of State: Kamat.

Please kindly read, kindly do not assume so many things It says X,Y,Z shall be members. Where is power to MLA (alone): Justice Dixit.

The GO only talks about uniform to be prescribed by CDC: CJ Awasthi.

The GO says headscarf is not essential to Islam: Kamat.

#HijabBan #hijabcontroversy

I have concluded with submissions on GO. Now I am on whether State can say it will create law and order issue and hence we wont permit: Kamat

This has been dealt with by Supreme Court on many occasions.

Can you give one judgment of High Courts or SC that popular representative cannot be part of such committee: Justice Krishna Dixit

#KarnatakaHijabRow #Karnataka #HijabBan

I am looking for judgments and if I get something I will make that good. My submission is public order is State function: Kamat.

There is no dispute that responsibility of law and order is on State: CJ Awasthi

When my religious freedom is being violated, can State take up a facile plea that this will create public order issue and hence we will restrict that religious freedom: Kamat.

#HijabBan

What the Chief Justice is asking how this is relevant to this case? Justice Krishna Dixit

Today what is it that stops State from permitting me to exercise religious freedom. They say public order: Kamat

#HijabBan

You are assuming that: CJ Awasthi

If that is the case, then they cannot restrict it on public order. I would be happy if the State says there is no public order issue. Then GO has to go: Kamat

#KarnatakaHighCourt #HijabBan #Hijabcontroversy

The State is yet to take a stand: CJ Awasthi.

One of the grounds which they take in the GO is public order. The State is obligated to allow me to exercise my religious freedom: Kamat.

#HijabBan #Hijab

Bench asks for official translation of the GO.

#HijabBan #Hijab #KarnatakaHijabRow

You can't read GO translations like statutes of Westminster. Common sense has to be applied: Justice Krishna Dixit.

#HijabBan

If the State says, it has nothing to do with public order, them the GO cannot stand scrutiny at all: Kamat

I am not just challenging the GO. I am also asking for a positive Mandamus to allow me to wear hijab of same colour as that of uniform: Kamat.

#HijabBan #KarnatakaHijabRow

Who else will be arguing for petitioner? Bench asks

Adv Kaleeswaram Raj says permit him sometime before respondents start.

An advocate mentions an application for restricting comments on media and social media.

Bench says it cannot restrict media. All it can do is maybe stop live streaming.

"That is in our hands but we cannot restrict media:" Court.

Hearing concludes for day. To resume at 2.30 pm tomorrow.

#HijabRow #Hijab #karnatakahijab

[Hijab ban] MLA committee cannot decide on public order, fundamental rights: Petitioners to Karnataka High Court

#karnatakahijab #karnatakahighcourt #HijabBan

Read story here: bityl.co/Av9Q