Thread by @LawBeatInd

A Special Bench of #KarnatakaHighCourt will at 2.30 PM 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, Advocate General Prabhuling Navadgi argued that Dr.Ambedkar specifically asked not to let religion enter education institutions #HijabControversy #HijabRow

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When a counsel mentioned of 'State excess' to implement the interim order being discussed in TV channels, the court asked him to argue before the TV channel #Hijab #HijabControversy

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Bench assembles #HijabControversy

Counsel says he has moved a writ petition seeking clarification of interim order. Says its a small issue.

Court calls for the record. #HijabControversy #KarnatakaHijabRow

Court: Let the AG finish arguing the matter, then we will see who else can argue. #HijabControversy

Counsel: Some students are being chased by the media! They are being humiliated.

Court: We will hear you.

#KarnatakaHijabRow

AG: I must state that I will try and complete today itself.

Court: We want to finish this cases in this week itself. We dont want it to spell over in the next week #HijabControversy #KarnatakaHijabRow

AG speaks of judgment of the #SupremeCourt in Mohommad Hanif Qureshi Vs State of Bihar. Matter pertaining to animal sacrifice being an essential part of Isla.

*Islam

AG: On the second test the #SupremeCourt , it is for the petitioners to demonstrate to the court beyond doubt as to what is compulsory to be followed, it must be obligatory in nature #HijabControversy #KarnatakaHijabRow

AG: The court asked the petitioners what should be considered as obligatory and what should be considered as optional. It is for them to demonstrate. #HijabControversy #KarnatakaHijabRow

AG: What is optional is not obligatory, what is not obligatory is not compulsory, what is not compulsory is not essential. It should be fundamental to religion #HijabControversy #KarnatakaHijabRow

AG: In this context, one argument that was advanced, they also say they trace their right independently to Article 19 (1) (A) to wear the dress. It is mutually destructive, if it is accepted persons who do not wish to wear need not wear. Element of option is there #Hijab

AG: They are mutually destructive. Art 25 has an element of compulsion as far as dress is concerned. The consequences of a declaration of a court in ERP is that every member of the community is bound to abide. #HijabControversy #KarnatakaHijabRow

AG: Dress is a freedom of expression. If a woman of Muslim community now has an option to wear #Hijab or not to wear it. Its a 19 (1) (A) right.

Court: If someone claims the right to wear it under 19 (1) (a)

AG: There is no prohibition to wear Hijab in our country

AG: The right to wear a #Hijab under Article 19 can be restricted under 19 (2). #HijabControversy . There is no ban on #Hijab in our country subject to institutional restrictions.

Court: After RC Cooper case, it was said that they are companion rights complementary to each other. #HijabControversy

AG: 19 (1) (A) can be controlled by 19 (2), we have a law in the form of Karnataka Educational institutions classification, regulation and prescription rules

AG: Independent claim of a 19 (1) (A) cannot go together with Article 25 #HijabControversy #KarnatakaHijabRow

AG referes to #SupremeCourt judgment of State of Madras Vs VG Rao #HijabControversy #KarnatakaHijabRow

AG: I don't think I need to dwell much on the reasonableness of uniforms being prescribed to students. The preamble of the act says that we want to give a secular outlook. There is no restriction to wear #Hijab in the school, it is only to class rooms. #HijabControversy

AG: The third aspect is whether discontinuation of a practice does it have any change in the religion? #HijabControversy In France, there is a total prohibition of Hijab in public spaces. I dont think anybody can say there is no Islam in the country

Court: It depends on the constitutional policy of every country. So many factors come to play.

AG: Without Hijab can Islam survive? France is an example. There is no prohibition in our country.

Court: Islam is same for everyone. #HijabControversy #KarnatakaHijabControversy

AG refers to the judgment of #SupremeCourt in Dr.Ismail Faruqi Vs Union of India. #HijabControversy #KarnatakaHijabControversy

AG reads from the judgment.

AG: Certain suras in the Quran which says Mosques to be place of worship. I will place certain Suras. Sura 2 verse 144, Sura 2 Verse 145, Sura 2 Verse 187, Sura 17 Verses 2 & 7, Sura 22 Verse 39. I must state we are no experts it is #Hijab

AG: This is the most difficult part of the argument as it deals with the holy text of Quran. I am placing an English translation. Holy Quran by Abdulah Yusuf Ali from Pakistan. This book has been referred to by #SupremeCourt with consent of All India Muslim Law Board #HijabRow

AG: This was referred to in the Triple Talaq case. We have not ventured deep into it. Except for referring to it, we have not interpreted it. One more book I am referring to by an English Man. It was referred by Justice YVC in Shah Banoo case #HijabRow

AG: The petitioners have placed a version from Quran.com. We found it to be a website created by a few volunteers, it does not seem to be authorised. The translation seems to be more or less same #HijabRow

AG: Syed Yusuf Ali's book also contains commentary. #HijabRow #HijabControversy

AG: #SupremeCourt in each of the judgment has interpreted it #HijabRow

Court: What do you want to show from this?

AG: The petitioners have placed reliance on 2 Suras. #HijabControversy #HijabRow

Court: Do we read right to left?

AG: As far as this book is concerned, it can be read like a normal book. #HijabControversy #HijabRow

AG: Sura 24 Verse 31 in this milord.

AG reads from the verse. #HijabRow #HijabControversy

Court: #Hijab as such is not mentioned.

AG: This is what I wanted to show. Then 33.59 has been relied upon milords.

#HijabRow

Court: This talks about a dress which is long gown. Not #Hijab

AG: This is what they have relied upon. It is very holy for the community, so I won't speak more.

Court: You mean to say that whatever the portion they refer to does not speak of it? #HijabRow

AG: I will distinguish the Kerala Judgment. It does not go into ERP, it was delivered pre Sabarimala and Saira Banoo. Post these the law has changed. #HijabControversy #HijabRow

Court: Which they had banked upon?

AG: They referred to Quran.com subject to correction. Mr.Kamat I remember very well. He said this.

Kamat: Yes, I relied upon it. AG is correct. #HijabRow

Subhash Jha: The word is Kimar

AG: Interestingly one personal experience. I appeared for the Wakf board, where we argued that once this dedication is permanent, it cannot be acquired. #HijabRow

Court: Are Mr.Kamat's sources recognised?

AG: No. The credits the court may see. Its an open source. They have not relied on the interpretation

Court: Have any court treated it as authoritative source?

AG: To my knowledge no. #HijabRow

AG: The last leg of the submission is assuming the court accepts every proposition by the petitioners. In the light of the law laid down by #SupremeCourt , would it be acceptable on the constitutional morality and individual dignity #HijabRow

AG: If someone come to the court and asks that every woman of a particular faith to wear it, would it not violate the dignity of the person? It is a compulsion of an attire. It is impermissible #HijabRow

Court: If suppose tying of Mangal Sutra held to be ERP, does not mean all Hindus should wear it.

AG: Today a judicial declaration is sought. As soon as it becomes a religious sanction, woman concerned becomes obligated to wear that particular dress #HijabRow

Court : Suppose the court hold this as an ERP, you say it may lower the dignity of Muslim women who do not wear it?

AG: Absolutely. It is in the context of dress. This hits at the concept of liberty. The choice to wear what we want #HijabRow

AG: Every woman of every faith has the choice. This is based on the interpretation of #SupremeCourt in the context of Sabarimala where women were prevented from entering the temple #HijabRow

Court: Has the review been decided?

AG: It is before a larger bench. As of today this is the law.
Court: Does the question referred , relates to Article 25?
AG: SC says mere fact that a judgment has been referred to a larger bench presidential value will not go #HijabRow

AG: All the questions before the court has been settled down by Sabarimala and Saira Banoo.

Kaleeshwaram RaJ: Review petition stands only defered, not dismissed #HijabRow

Court: What is the legal authority if a judgment is referred for consideration of larger bench?

AG: I have a judgment to this effect. #HijabRow

MS Bhati Vs NIC 2019 12 SCC 248

AG: It has been held that the law which has been laid down binds the court as a matter of judicial discipline. If we do not follow them today it would amount to indiscipline

Court: You have it ready?

AG: I anticipated this milord. #HijabRow

AG: There cannot be a vacuum when a case is pending milords. The judgment of the court requires to be followed. Sabarimala questions are slightly different. #HijabRow

AG: I want to read the last paragraph of Justice Chandrachud in Sabarimala Judgment milords. #HijabRow

AG: Women cannot be subject to a compulsion of a dress in the light of what has been submitted. This is my submission, please keep that in mind as I read milord. #HijabRow

AG: The central force of any interpretation is dignity. Dignity involves liberty. They want to make the women wear Hijab. It goes against liberty. #HijabRow

No prohibition of Hijab anywhere, it cannot be compulsory. It should be left to the woman concerned

AG wants to read the judgment of #SupremeCourt in Justice Puttuswamy case (Right to privacy) #HijabRow

Court: Did the other members of the bench agree or disagree with Justice Chandrachud?

AG: There is not much discussion on that. #HijabRow

AG: A right cannot be exercised in isolation in public spaces etc. Institutional discipline is paramount. #HijabRow

AG: Arguments have been advanced that there has been religious discrimination. These are all bald allegations. There is nothing to substantiate. For petitioners like Mr.Mohan, we are not enforcing anything on them. The choice is left to institution #HijabRow

Court: Some directions have been issued by State?

AG: No milord.

Court: If this is your stand, then we can dispose off his petition based on this. He is saying that the government is not interfering in minors institutions

Mohan: We are both aided and unaided #HijabRow

AG: Petitioners who represent who represent women organisation, I am saying what they think. Dignity of women should be kept in mind. #HijabRow

This morning when I was coming to the court I heard a song by Ludhianvi "Muskurakar jiyo."

Court : We will request each of you to start preparing your written submissions. We will give 10 minutes time to petitioners.

AG: Mr.Venkatramani Sr.Adv wants to make submissions #HijabRow

Venkatramani: I appear for the teachers in this petition. Let me try and be as brief as possible. There are only 3 broad propositions I would like to make #HijabRow

Venkatramani: I appreciate and understand that discipline and order is important both for the teacher and the taught. I am not trying to say Religion A is higher, Religion B is lower. Article 25 recognises all religions are equal. #HijabRow

Venkatramani: Any measure on the part of the State or on the part of the school to bring in a certain discipline and order, as long as there is neutrality. #HijabRow

Venkatramani: School stands on a higher footing, it is where people come to learn. I place emphasis order and discipline. the State with bonafide intention, the court will not hold it to subject to strict scrutiny #HijabRow

Venkatramani: Governance is a very heavy subject, only when they commit a breach the court interferes, the court will not teach how to govern. The ethos of the country, the background, we have a long history #HijabRow

Venkatramani: To borrow a particular country's jurisprudence and apply it to India is detrimental. None of the judgments placed have the dimension of the public order issue. The State will not put a heavy burden to establish what is public order. #HijabRow

Venkatramani reads from his note. #HijabRow

Venkatramani: The second proposition is Article 25.

Reads the article 25 #HijabRow

Venkatramani: The proposition equal right to practice religion does not mean the state will enter into debate on what is religion as long as there is no public order issue. For public order, the state need not get into ERP #HijabRow

Venkatramani: When the regulatory power comes in under Article 25 (2), in that context questions such as ERP will come in. #HijabRow

Venkatramani: Art 25 does not even say that the State needs to any act to bring in public order. It is the duty of the State to bring public. The powers of the State goes into wide range of governance #HijabRow

Venkatramani Sr.Adv: I am not belittling what is said in the Holy Quran, it is a holy book. When you enter into a public space, like a qualified public space it will have its own dimensions and unique features. #HijabRow

Venkatramani Sr.Adv: This is a very special unique public space called a school. Let us not dilute this by an extraneous elements #HijabRow

Venkatramani Sr.Adv: We as a national have been culturally and historically have been pluralistic. It is stated that public order has been excessively stated, even a breach of order in a small place is a question of public order. #HijabRow

Venkatramani Sr.Adv: the next submission is about the constitutional court of South Africa by Kamat. It has no bearing on the public order question. the court applied a very balanced view on that, the court has not emphatically answered what it is. #HijabRow

Venkatramani Sr.Adv: If suppose tomorrow people belonging to other religions ask the their children to practice their religion, it cannot be called a parade of horribles #HijabRow

Venkatramani, Sr.Adv: The legitimacy of reason does not mean that the State is powerless to deal with these questions . In social media people are talk about reasons, it will not come in the way of the state #HijabRow

Venkatramani, Sr.Adv: Unless in the same constitutional and legal context, the facts are similar to borrow a foreign judgment will be problematic. #HijabRow

Naganand Sr.Adv: There has been an accelerating debate. Such a myriad points of view have been placed before the court. I want to be a little more mundane. #HijabRow Please take the WP

Naganand: The prayers in the petition are somewhat unusual if I can say so. The entire frame of WP is based on the guidelines and its enforceability. There are no specific plea or authority as to the factual position in the college #HijabRow

Naganand: They dont say when they joined a college, they don't say they signed an undertaking, they dont say when all this happened. #HijabBan

Naganand: This is a factual issue on which the court is called upon to decide. This is an entirely girls college, no boys are admitted here. However occasionally some parents enquired if they could wear #Hijab #HijabRow

Naganand reading from the petition.

"They have been told not to sing, dance etc."

Naganand: This has nothing to do with religion. In South at the time of marriage Hindus dont have Mangal Sutra. Now in some places it is an essential part of the wedding #HijabRow

Naganand: It is a cultural thing, it has nothing to do with religion. There is a fine line between culture and religion. #HijabRow Saptapathi is considered an essential feature, in many communities its not there. one sect of a religion chooses to follow a practice

Naganand: There is a distinction between ERP and a cultural practice that is attached to religion. In Rajasthan women cover themselves with Goonghat, the father in law does not know how the daughter in law looks. This is not the same everywhere #HijabRow

Nagagnand: It is not possible for every Muslim to stop whatever they are doing and pray 5 times? Same thing with brahmins, Sandhay Vandana is to be done 3 times a day, can I excuse myself and go? #HijabRow

Nagagnand: If I am driving a scooter, can I stop it in the middle of the road to pray? The police will catch me. #Hijab is not an ERP, there are some practices that are essential for religion. If certain duties are not performed, there are consequences for it #HijabRow

Naganand: Islam says you can pray, if you play the loud speaker at a high volume (refers to the case) in the course of practicing your religion if you are coming in the way of others, where does the line lay #HijabRow

Court:
The Ld.AG has concluded his argument. Mr.R.Venkataramani has also made his submissions. Mr.S.Naganand is making his submissions, put up tomorrow at 2.30. #HijabRow

Mohan, Adv: The submission of the government maybe recorded. My prayer is for unaided minority institutions though I mention

Court:
Hear Ld.Counsel for the petitioner, as well as the AG. AG has made a statement saying that government is not interfering in minority unaided inst

In view of above we are of the view that nothing is required is to be considered. #HijabRow

“Islam can survive without Hijab, France is an example”: Advocate General argues against recognising Hijab as Essential Religious Practice @sai_prasad_law reports
#HijabControversy #KarnatakaHijabControversy
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