Thread by @LawBeatInd

A Special Bench of #KarnatakaHighCourt will shorty resume hearing plea(s) by girl students challenging alleged ban on wearing #Hijab in government PU colleges in Udupi district. AG Prabhuling Navadgi is expected to continue making his submissions #HijabRow

On the last date of hearing Navadgi argued that #Hijab will have to stand the test of individual dignity and constitutional morality to constitute an Essential Religious Practice (ERP) #HijabRow
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The Karnataka High Court today declined a plea to stall live streaming of proceedings in the ongoing hijab row controversy. It remarked that the people need to know the stand of the government and college #HijabRow
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Bench assembles #HijabRow #KarnatakaHijabRow

Counsel: I have filed an application for impleadment brining certain grounds on record.

Court: Right now we don't we feel dont need the assistance of any intervenor #HijabRow

AG: The second issue is whether #Hijab is a fundamental right under Art 24 of the constitution. #HijabRow .

court: We would like to have one clarification on GO. It says there is not restriction on Hijab, the GO says nothing about it this is your stand?

AG: Yes

Court: Please come to your statement of objections. Please read it.

AG reads it

#HijabRow

Court: What is the meaning of the words used which say "uniforms have to be followed." Do you have #Hijab has to be permitted in institutions or not? If they permit you do not have an objection?

AG: We have said #Hijab is not a part of fundamental right. #HijabRow

Court: The petitioners have said they maybe permitted to wear #Hijab on the colour of the uniform. Can it be treated as a part of the uniform? If they are wearing dupatta, they wear it overhead also. Can it be permitted? #HijabRow

AG: The order dated 5th Feb if read as it is gives complete autonomy to the institution. The question of #Hijab, we have not prescribed. Whether students must be allowed is that element of introducing a religious aspect should not be there #HijabRow

Court: Stand is that the State is not interfering, it is left to the CDC?

AG: Yes.

Court: Do we have to go into constitutional questions ? given your stand #HijabRow

Court: The college committees are private bodies, why are we supposed to see what they have done? They are not statutory bodies, they were created under your circular #HijabRow

Court: Since they are not statutory bodies, can court pass an order? Now that it is for the CDC to decide.

AG: Here is the difficulty milords, the questions which would be posed is could you prevent someone from entering for wearing #Hijab? #HijabRow

AG: This question as to whether #Hijab would form part of Art 25 will have to be decided. If the court decides it does not fall part of Art 25, different considerations would arise. The entire controversy would arise. #HijabRow

AG: In this case, the institutions have taken stand. There are some government institutions which are amenable to writ jurisdiction. Shirur Mutt onwards, law has evolved as to what forms ERP. Today if State says they won't permit Hijab, it would be different. #HijabRow

AG: In Sabarimala , constitution has to decide the enforceability of religious practice. If the petitioners had said they are not permitting #Hijab, they say permit us to wear #Hijab as a religious symbol. #HijabRow

AG: Once this controversy is settled, other issues may follow. #HijabRow

Khazi J: Whether ERP is also available to conscience?

AG: Freedomw conscience is something is which you believe or do not believe. The question of ERP does not arise here.

Dixit J: it has 2 components, one is conscience, Ambedkar said it maybe there because there maybe persons who would not believe in God. #HijabRow

AG: Freedom of conscience be construed as what you believe in and what you dont believe in.

AG reads from constitutional assembly debated. #HijabRow

AG: Either to believe or not to believe, what you manifest is practice of religion. Ambedkar asked why do you insist on someone to profess a religion? #HijabRow

AG reads from constitutional debate.

AG: if freedom of conscience was not there and right to practice was there, the founding fathers believed that it would force persons to do certain things. #HijabRow

AG: Som members debated that if we have to adopt this as a secular state, why do you have religion as a right? it may lead to conflicts. However they decided to have it #HijabRow

Dixit J: The secularism by our makers is not akin to the one in America. It socialite between the two. It is not a wall between the church and the government. #HijabRow

AG: Dr.Ambedkar says do not allow religion to come in institutions, every institution is different. It was lead to a clash. There was a likelyhood of a clash #HijabRow

Court: SC has also said the same. Our constitution did not enact what Mark had said "opium of masses."

AG: It is one of the most delicate subject that the constitutional assembly dealt with. Freedom of conscience has been used in contradiction to practice of religion #HijabRow

AG: Freedom and right have been very consciencly used. The second right is about question about elevating right to #Hijab under fundamental right. The law in regard to ERP seems to be settled #HijabRow

AG: Art 25 does not speaks of ERP, it speaks of protection of religions Sc has said it is impossible to define religion. Particularly among Hindus. #HijabRow

AG: What Art 25 protects is not practice of religion, it protects ERP. In Sabarimala they say it should be essentially religious to be protected with Art 25. #HijabRow

Court: Tell us what amounts to ERP?

AG: Sabarimala gives 5 tests. There are 5 instances.

Court: Where is the judgment?

AG: I will come to it milord. #HijabRow Please take AIR 1962 SC 1402

AG: This was a case of where a law made in UP which prevented the Sufi followers from collecting the donations.

AG reads the judgment #HijabRow

AG: This was a case where persons with one marriage were banned from contesting in election, the plea was since Islam permits more than one marriage so its protected under ERP. Javed & Ors VS State of Haryana & Ors. #HijabRow

AG: 2003 8 SCC 369. The background is a legislation was brought in to prevent persons from contesting election if they are married more than once. Javed said its a violation of Article 25. #HijabRow

AG: The judgment which according me settles the issue is Ananda Marge case, which dealt with Avadoota case. #HijabRow

AG reads from the case.

Court: Now apply this principle

AG: 3 tests from this 1) core belief of the religion 2) is this practice fundamental to that religion 3) if it is not followed the religion will vanish. The religion should have been built on the practice #HijabRow

AG recites an anecdotes about a Gowda Saraswat Brahmin temple. Where no one was allowed to perform Pooja of the idle.
AG: The SC said the right to perform the Pooja rests with them. because it has preceded the foundation of their philosophy #HijabRow

Court: Performance of Pooja is not an ERP.

AG: it was not the performance of Pooja in question, it was Pooja by this particular section. SC upheld it.

Court: There is case from Kerala/TN where court has held it is not their right. #HijabRow

AG: In this context, there is an indication from SC that food and dress cannot be considered ERP.

AG refers to the judgment #HijabRow

AG is reading Shirur Math case. #HijabRow

AG: When they read it out the emphasis was SC said any dress can be considered part of religion. Now read AS Narayana Dixitulu Vs State of AP

#HijabRow

AG: It says it is not every such activity that will come within the practice of religion. The court must take a pragmatic view on this #HijabRow

Court asks AG to read a certain portion of the judgment. #HijabRow

AG: This is with regard to group of individuals, competing rights and balance to be stuck

AG: This entire law relating to ERP has been put in a consolidated way in Sabarimala case. The need for bifurcating this was spoke of by KM Munish, this was quoted in Shaira Banoo. He says which should put our foot down all RP which will divide the country #HijabRow

RP- Religious Practices

AG reads from Sabari Mala case, portions where KM Munshi's quote was extracted. "We are in a stage where we must unify and considerate the nation without interfering with relgious practice. Rest of life must regulated that we may evolve as early as possible." #HijabRow

AG: The indication says that we may not have religious practice that that divides the nations. Now milords Sabarimala judgment #HijabRow

AG: I will first read the observation of Justice Nariman in relation to ERP and then read Justice Chandrachud's observation #HijabRow

AG reads from the Sabarimala judgment #HijabRow "One test involved will be if we remove the particular test, would the religion remain same or will it be altered? "

AG: The court says remove that and see to test whether the religion remains the same. #HijabRow

AG: There is a word called control of disease used in the judgment. They wrote it even before the judgment. Court laughs #HijabRow

AG: What I wanted to submit was, Art 25 has different sections. The tests are 1) They have to prove its a religious practice, 2) then ERP, 3) it does not come in conflict with public order, morality and constitutionality #HijabRow

AG continues to read the Sabarimala judgment #HijabRow

AG: After quoting Shirur Math, there is a shift in the judgment in Venkataramana Devaru . #HijabRow

AG: The earlier shift of focus is whatever religious denomination says maybe considered, the court's role becomes critical. "this shift in judicial approach took place when the court's enquiry into the essentiality of the practice of religion." #HijabRow

AG: this will have prominence, earlier the shift was what is essentially religious to distiguish between essential practice and secular practice. Now even if it is essentially religious, it should be essential to religion. If not the matter stops. #HijabRow

AG: ERP test was done to distinguish between religious practice and secular practice.

AG reads Ajmer Dargah's case. #HijabRow

AG: Here the court established what is a superficial belief and a religious belief. It held that superstitious practice do not enjoy the protection of the constitution #HijabRow

AG reads from Bohra community ex-communication case. #HijabRow

AG reads from Ananda Thandava case.

AG: Essentiality test came to the fundamental character of the religion. They were not permitted to practice since it did not touch upon the fundamental character of the religion #HijabRow

AG:From a reading of these things, I carve out 4 principles #HijabRow
1) Practice should be fundamental in that religion
2)If the practice is not followed it would result in change of the religion itself.
3)This practice must precede the birth of the religion itself, the foundat

Foundation of the religion should be based on it. It must be coextensive with religion. it should be the cornerstone of the religion

4) Binding nature of the religion. If It is not optional, it is not essential. It must be compulsive that if you disobey you cease to be a part.

AG: . With this background, the court may examine the claim of the petitioner. This is a case where petitioners who have come, they are seeking a declaration for every woman of Islamic religion #HijabRow

AG: The burden to establish this as an ERP completely rests upon them. Please see the pleadings in the petition #HijabRow

AG: Kindly see this writ, it says "wearing head scar is a cultural and religious practice." In other petitions also they merely say its an ERP. They don't establish how it is an ERP

AG reads from the petitions #HijabRow

AG: In a PIL there is no averments about wearing #Hijab showing it is ERP. There are no averments on Hijab in a PIL.I am nobody to say anything, when a case of such case where you want to bind everybody, which gives rights to various sentiments

You ought to have shown circumspection-AG

AG: This material, I took them only to show what materials the court has to apply. There is no material whatsoever. #HijabRow

AG: They have place zero material to show it is an ERP. They have not substantiated their declaration. I will say something on Quran. This court must examine this material with reference to declare it as ERP. #HijabRow

AG: There are several men belonging to Islamic faith to assist this court here. Since they have not done, we will show the court. Whenever declaration was placed on Quran SC negated it #HijabRow

AG: In Qureshi's case sacrifice of animal is not ERP, second was Javed's case. In Babri Masjid the government acquired the entire area, they said acquisition of mosque takes away the essential practice. It was negated. #HijabRow

AG: Fifth one was in Karnataka HC. A hotel land belonged to a Wakf board, it was leased to a company. The lease was challenged because the hotel sold wine and pork. The HC said it can't be considered. Its not first time that such a challenged before the court. #HijabRow

AG: I will be in a position to show this law. This is not coming up for the 1st time. If they pass the 4 tests, the schools cannot prevent it. If it goes the other way, there are other consideration #HijabRow

AG: I have told the Chief Secretary to convene a meeting on excesses committed for #Hijab all such instances will be taken care of. There will be no issues. #HijabRow

AM Dar,Sr.Adv wants to make submissions.

Court: Which case are you appearing ? This is not a public platform where anybody can start speaking !! #HijabRow

Counsel: Some women are being asked to remove the Hijab in front of people. A separate place maybe given. It has come in TV channel.

COurt: GO and argue before the TC channel only #HijabRow

Court:
We have come to the end of the second of point of argument. We will continue tomorrow at 2.30. Ld.AG will continue his arguments at 2.30 #HijabRow