Thread by @barandbench

Hijab Ban: Karnataka High Court full bench to hear petitions against ban on wearing hijab in Govt colleges.

#Hijab #HijabRow #KarnatakaHijabRow #karnatakahighcourt

Track this thread for LIVE UPDATES from court.

Hindu Sena Vice President has filed intervention application before the High Court praying that he be heard.

#Hijab #HijabRow #HijabBan

Read more about that here: bityl.co/Aw4V

Hijab Ban: LIVE UPDATES from Karnataka High Court Full Bench hearing

#HijabBan #HijabRow #karnatakahijab

Read live account from court here: bityl.co/Aw4t

Bench has assembled.

#HijabBan #HijabControversy #karnatakahijab

Advocate mentions that the interim order of the Court is only for colleges which have uniform.

But despite that Muslim girls are being forced to remove hijab even in colleges which do not have uniform.

CJ Awasthi: File an application for clarification.

#HijabRow #HijabBan

Advocate General Prabhuling Navadgi: We cannot respond to vague allegations. Let him file a proper application.

#HijabRow #HijabBan

Senior Advocate Devadatt Kamat resumes his submissions.

#KarnatakaHijabRow #karnatakahijab

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 Kannada translation of Constitution and wherever public order is used, it is Sarvajanika Suvyavasthe: Kamat

#HijabRow

It is surprising that they have not read the translation: Kamat.

Justice Krishna Dixit: We are interpreting a GO. We cannot interpret a term in GO based on what is used in Constitution.

My argument is the word Sarvajanika Suvyavasthe is not capable of two meanings. That is my argument. Public order in Constitution is Sarvajanika Suvyavasthe: Kamat.

If the State has used that term in the GO, it has to be given the same meaning as that in the Constitution: Kamat

#HijabBan #HijabRow

It has been used in the Constitution 9 times: Kamat referring to Articles where the term Sarvajinaka Suvyavasthe is used in Kannada translation of the Constitution.

#hijabban #HijabControversy #karnatakahijab

It is categoric that Sarvajanika Suvyavasthe is public order and the use of the same in GO cannot have any other meaning: Kamat

#karnatakahijab #KarnatakaHijabRow

The second issue that fell from Bench yesterday was why we are going only on Article 25(1) and not Article 25(2): Kamat

Can essential religious practice be curtailed for reform under Article 25 (2)?

That is answered by Constitution Bench decision of Supreme Court in Sardar Syedna Taher Saifuddin vs The State Of Bombay: Kamat
indiankanoon.org/doc/510078/

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

#HijabRow #HijabControversy

Neither under Article 25(2)(a) or (b) can ERP be curtailed except under public order, morality or health: Kamat

Kamat reading out from judgment when ERP can be restrained.

There is some amount of guidance on how State has to exercise its powers to restrict ERP: Kamat

#HijabBan #HijabRow

As per the guidance of Supreme Court, if a religious practice is abhorrent then State on ground of public order, health or morality can stop it.

But in this case, this is a innocuous practice, wearing of headscarf: Kamat

#HijabRow #KarnatakaHijabControversy

The essence of Article 25 is it protects any practice of faith but not mere display of religious identity or jingoism: Kamat

When I was in school and college, I used to wear a rudraksha on my neck. It was not for displaying religious identity. By wearing it, I felt a link with my creator, a certain degree of protection: Kamat

#HijabRow #HijabBan

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 display of religious identity alone but something more: Kamat.

If it is sanctioned by our scriptures, Vedas, Upanishads, Your Lordships are duty bound to protect it. If not Article 25 wont apply: Kamat

#HijabRow #HijabControversy #KarnatakaHijabControversy

The legislation relied upon by State should have intent to reform. They have relied on Education Act but that law does not show that it is a law which has been enacted to curb hijab or for some social reform. That law should show a specific intent: Kamat

#HijabRow

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 home work: Kamat

I will take the Court through some countries where courts have responded to this issue.

Kamat refers to South African judgment of Antony v. Governing Body.

#HijabBan #HijabControversy

Justice Dixit: Is it a theocratic State?

Kamat: No, the jurisdictions I am going to cite have a written Constitution.

#HijabControversy #KarnatakaHijabControversy

In the Antony v. Governing Body, the petitioner embraced an African faith of Rastafari which required her to grow dreadlocks: Kamat:

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

#HijabRow #KarnatakaHijabControversy

Kamat referring to another judgment of 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

Kamat reading out from the judgment which says how we are not islands but are connected by a superior force.

Our scriptures also say the same. And that is what is expressed even in distant African land. I thought it was quite astonishing: Kamat

#HijabRow

The judgment said that the practice has to seen from the point of believer, same as what Bjioe Emmanual said: Kamat

#HijabRow #KarnatakaHijabControversy

What the judgment suggests is that there should be certain degree of accommodation. That you can't send a message to someone in a community that a particular religion or culture is not welcome: Kamat

#HijabRow #HijabControversy

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

#HijabRow #HijabBan

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

#HijabRow #HijabBan #karnatakahijab

The South African Court in that case said that it was not a case of uniform but about exemption to existing uniform: Kamat

#HijabRow #HijabBan #karnatakahijab

In our case, it is not even about exemption to uniform but just about an additional head scarf of same colour: Kamat

#HijabRow #HijabBan

The school in that case had argued that if the nose ring is permitted, more students will come with dreadlocks, body piercings, lion claws etc. The same argument is being raised here: Kamat

#HijabBan #HijabRow

The Court found that this argument has no merit since the judgment applies only to bona fide religious and cultural practice: Kamat

#HijabRow #karnatakahijab

The Court of South Africa said that display of religion and culture is not a parade of horrible but fragrance of diversity which will only enrich our country: Kamat

#HijabRow #HijabBan

You said you yesterday that you will complete your arguments in 10 minutes today: CJ Awasthi

Yes, but it was my duty to respond to queries raised by Court yesterday. I promise I will finish today: Kamat

#HijabBan

Kamat referring to judgment of Justice DY Chandrachud wherein he talks about growing intolerance in context of West Bengal govt stopping screening of movie Bhobishyoter Bhoot
barandbench.com/news/supreme-c…

I will not trouble Your Lordships with more judgments. I have said everything in my written submissions. I will conclude in 10 minutes: Kamat

#HijabRow #KarnatakaHighCourt

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

According to the doctrine, the State has a positive obligation to create a situation for enforcement of fundamental freedoms: Kamat

#HijabRow #KarnatakaHijabControversy #karnatakahijab

Our secularism is not Turkey secularism. Our secularism is positive secularism where State plays an enabling role to exercise fundamental rights and religious freedoms of all communities. It recognises all religions as true: Kamat

#HijabRow #HijabBan

Kamat reading out Aruna Roy judgment which spoke about Sarva Dharma Samabhava.
indiankanoon.org/doc/509065/

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

#HijabBan #HijabRow

Assuming you have 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

#HijabRow #KarnatakaHijabRow

In your case, have the students been expelled? CJ Awasthi

No, but they are not being allowed to attend class. It has the same effect: Kamat

Expulsion is one thing, not permitting entry is another: Justice Krishna Dixit

If a passenger is not allowed inside train because he does not have a ticket, that is not expulsion: Justice Krishna S Dixit

This is not a case of passenger in train. This is a case of student wanting to access education and State is saying we will not permit you. I raised proportionality in that context: Kamat

#HijabRow #HijabBan #KarnatakaHighCourt

The sweep of Your Lordships order would be extremely broad. In the meanwhile, please make some leeway to have same uniform with same colour headscarf. Please don't continue the interim order is my submission: Kamat

#HijabRow #HijabBan

Kamat concludes. Thanks his colleagues who did the research - Nishant Patil, Nizam Pasha, Shahul and Niyas.

I am only a mouthpiece of their hard work: Kamat

#HijabRow #HijabBan

Senior Advocate Ravivarma Kumar commences arguments for Smt. Resham

Advocate General says he wants to point out a factual aspect. AG says Kumar's client has filed two petitions.

#HijabBan

The same petitioner cannot urge same questions of law based on same facts through another counsel: AG

After some confusion, Senior Advocate Ravivarma Kumar resumes arguments.

#HijabRow #HijabBan

Let us first understand the status of the petitioner. Has she filed memo for withdrawal of other petition: CJ Awasthi.

Yes: Ravivarma Kumar.

#HijabBan

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

#HijabRow #karnatakahijab

Kumar referring to GO and says he does not want to go into "Suvyavasthe".

"This is definitely avyavasthe," he says.

#HijabRow #HijabBan

Kumar reading out GO.

The govt itself has said they have not decided on uniform but has constituted a high power committee to go into the question: Kumar.

In colleges under Karnataka pre-university committee, the uniform prescribed by College Development Committee has to be followed: Kumar reading out GO.

The sum and substance is there is no ban on hijab. The prescription is CDC shall prescribe the uniform: Kumar.

#HijabRow

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

#HijabRow #HijabControversy

Kumar referring to Section 2(7) of Karnataka Education Act on definition of "competent authority".

It has not been given any power to prescribe uniform: Kumar

#HijabRow #HijabBan

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

#HijabRow #karnatakahijab

Colleges are reopening tomorrow. I have filed an application yesterday: Kumar

That application is defective. We can't respond to it: AG Navadgi

A memorandum of facts can be sworn by counsel only on facts which are on record: Navadgi

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

Adv Tahir says difficult for petitioner to come all the way from Udupi to Bengaluru everytime

Court rejects.

Hearing concludes for the day.

#HijabRow #HijabBan #KarnatakaHijabRow

[Hijab ban] We are not Turkey which says no religious symbols can be displayed in public: Petitioner to Karnataka High Court

#HijabControversy #HijabRow #karnatakahijab #KarnatakaHighCourt

Read story here: bityl.co/AwFE