Thread by @barandbench

{Hijab Ban hearing}

Supreme Court to begin hearing batch of appeals challenging the Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges

#SupremeCourt #hijab #HijabBan

The matter will be heard by a bench of Justices Hemant Gupta and Sudhanshu Dhulia
#SupremeCourt #HijabBan

Hearing to begin
#SupremeCourt #HijabBan

SG Tushar Mehta during the earlier hearing had submitted that the case will be argued today itself without any counter affidavit

#SupremeCourt #HijabBan

Sr Adv Dushyant Dave: this matter needs very detailed submissions as this is a substantial question of law with constitutional question of law. Please have this on non miscellaneous day

Justice Hemant Gupta: Let us begin today and let us hear it again the next day

Dave: Perhaps you do not understand that on a day like this I could not even got my books inside

SG Tushar Mehta: first reason that books could not be got inside #HijabBan

Dave: Please Mr Mehta you do not need any books. You are brilliant

Sr Adv Rajiv Dhawan: The court is extremely crowded today

Justice Gupta: we have a few items today. we will finish them and take this up at 1:30 pm

Dave: why cannot this be kept tomorrow?

Sr Adv Devadatt Kamath: HC has recorded that petitioners were not wearing hijab during admissions. this is completely wrong. it is contrary to the record placed by us. if they dont file a counter then the right to counter should be closed for them #hijabban

SG: For the state this is a question of law no counter is needed

SC: We have recorded this submission

Sr Adv Sanjay Hegde: I seek your liberty that this issue should be decided on the ground of uniform which is a narrower ground.

SC: There are other seniors also

Sr Adv Hedge: Yes Mr Dhawan or Mr Muchhala will argue first

Justice Gupta: we will have the arguments at 2 pm. Please decide who will argue first.

Dave: please keep in mind some issues are pending before the 9 judge bench

SC: Let us understand all that from arguments

Hegde: The matter started from my home town Udupi, I will give you the entire factual background.

SC: Please decide who will argue and we will hear it accordingly

Sr Adv Siddhartha Dave: Mr Hegde is seeking reservation on ground of domicile (smiles) #hijabban

#HijabBan arguments to commence at 2 pm
#SupremeCourt

Hearing resumes
#HijabBan

Justice Hemant Gupta: Mr Hegde we would like a common compilation after the arguments end

Sr Adv Hegde: Dr Dhawan and Mr Ejaz Maqbool had a great experience of this during #Ayodhya case It will be done.

#HijabBan

Maqbool: one matter has to be defined as a lede matter and then compilations can be filed therein. Written submissions has to be filed from both sides. This will be filed with flagging, etc done. Then each counsel will divide on areas to be addressed by them #hijabban

Maqbool: but compiling everything on a Monday afternoon...

SC: no no not today in 2-3 days

SG: The High Court lede case was Ayesha Shifa.. that can be taken as lede

Hegde: My petition was the first to be filed after HC judgment

#hijabban

Advocate Javedur Rehman informs court that only one matter challenges the interim order and others challenge the substantial Government order restricting the use of #hijab

SLPs challenging interim order disposed off
Petitions challenging the Karnataka Govt order has been taken up now

Justice Hemant Gupta: What is the time that will be taken?

#hijabban

Sr Adv Rajiv Dhawan: the case delves with a constitutional question which this case has not dealt with earlier. this deals with a significant question if hijab is essential to islam

Justice Hemant Gupta: can you say that you want to wear a religious thing in a government educational institution.

Justice Gupta: Our constitution says ours is a secular country and can in a secular country you say that a religious clothing has to be worn in a govt run institution. this can be an argument

Senior Adv Dhawan: when there is a prescribed code then can turban be worn. look around you milord.. in court 2 there is a picture of judge wearing pagdi.

Justice Hemant Gupta: Pagdi is not religious. My grandfather used to wear it while practicing law. Dont equate it with religion

Dhawan: Here question of millions of girls... who adhere to the uniform but also insist to wear the hijab

#HijabBan

Dhawan: As per Article 145(3) deals with minimum number of judges who can hear a substantial question of law. Here the question is can the right of religous clothing be reconciled with uniform.

Sr Adv Dhawan: It was suggested that scarf be of same colour of uniform, Even in this court some women are wearing. Now in schools can they asked be to removed it? what this court will rule the whole world will look at it. Hijab affects women across the country and globe

Sr Adv Dhawan: There are 2 inconsistent HC orders. One by Kerala HC and one by Karnataka HC where one says hijab permitted and one says its not. what the indian SC holds in this regard will be very important

Justice Gupta: ya ya we will look at it

#hijabban

Sr Adv Sanjay Hegde begins: The HC judgment does not individually deal with submissions. HC framed the questions

SC: Only 1 and 2 are important questions and others are only reverse

#HijabBan

Hegde: what does Karnataka Local education act say? can you make rules and give direction and can those directions run foul of other provisions of the act

Hedge: Today is Teacher's Day and this started in Udupi as an instance between teacher and student which has now blown up. What I had said that the issue must be confined to Udupi and that is how broader things may not have been gone into. #HijabBan

Hegde: These girls who wore Hijab to school faced discrimination, was made fun of and also were asked to stand outside the classroom. When parents informed that there was consent for hijab from school, the school principal candidly said it was no a requirement

Hegde: When petitioner parents came to meet, they were made to wait all day and the strategy was to frustrate them and concede. Then District Education officers were approached. The officers reprimanded the school principal for not allowing students wearing #hijab to attend class

Hegde: Please look at Section 133(2) of the Karnataka Education Act and whether is it mandatory for students to wear uniforms as mandated by the governing body of an institution

Justice Dhulia : so it is upto college Committee or Board of supervisors?

Hegde : In private colleges, board of supervisors and Government colleges it is as per Development Committees. This was an incident in a place which was attended by me and my parents. Udupi should not be proud of this. It blew out of proportion due to dynamic of politics

Hegde: Can you deny education to women contingent upon the attire or clothes they wear. Thus keeping it religion neutral and in the realms of the act #hijabban

SC: what is your preliminary objection?

Hedge: If a case can be decided on purely statutory grounds without entering the constitutional scheme is a better approach. can someone be excluded from college because you think they wear the uniform does not adhere to uniform code

Hegde: Most of the colleges prescribe salwar, kameez and dupatta. So now can we tell a grown woman that you cannot have control over your modesty or place it above your head. can this be done in Patiala? perhaps no

#hijabban

Justice Hemant Gupta: once a lady lawyer appeared in SC wearing a jeans and she was asked not to. she can also say I will wear what I want

Hegde: Can anybody tell her you will not access the court because attire..

#hijabban

Justice Gupta: Mr Dave will tell us that a dress code is there for a golf course as well

Hegde: that is a private party

Justice Dhulia: it is not a private property

Justice Gupta: it can also be the norm or rule that shorts are not allowed in a restaurant

Hegde: This is about access to education, the education for which all of us pay taxes

SC: Sorry only 4 percent pay taxes

Hegde: indirect taxes we all pay, but I would not join issue here. access to govt education...

Hegde: in this case... one girl joined a private college where hijab is allowed. the second girl is doing 12th at a private school... this judgment will have bearing on vast section of society.

Hegde: When education for girls started .. by Ishwar Chandra Vidyasagar they used to be taken in covered cars...

SC: Okay got it.. access to education will be denied if hijab is not allowed.

Justice Dhulia: dont take us there and take the time of court.

Justice Gupta: you say educational institution cannot issue a rule but what about the state unless there is a statute which prohibits dress code. So tell me can a student come in minis, midis, whatever they want

SC: we need not follow blindly what HC said, but tell me if the act prescribes something or not , then will the state executive power will come into play or not?

Hegde: the executive power cannot be exercised at the cost of fundamental rights #HijabBan

Justice Gupta : Mr Hedge..then let others take up on the issue of fundamental rights. Please dont tell us all this.. directive principles of state policy etc etc.. we know..

Hegde: Milord sometimes reading this is important

Judges smile (okay go on) #hijabban

Hegde: The rules mostly relate to school education and these events have taken place at Pre University Colleges at 10+2 stage. When the uniform is sought to changed then notice is issued a year in advance. #hijabban

Justice Hemant Gupta: this about changing colour of uniforms or may be changing to trousers etc..

#HijabBan

Hegde : govt prescribed curricula cannot include power to prescribe uniform

Justice Dhulia : but strictly speaking curriculum won't include uniform ...

Hedge: the govt order says no attire can be worn which shows religion being professed.

#Hijab #SupremeCourt

Hegde: the GO is contrary is object and purposes of the act and it cannot be used to give a direction etc. #hijabban

Hegde: even under Rule 11A uniform prescribed must be in consonance with the mandate of the act. #hijabban

Hedge: like kapdo se pehchan sakte hai etc will also be out, the act of recognition through this is also beyond the act as there cannot be any discrimination on basis of religion. Next any rule cannot go further than the act

Sr Adv Hegde refers to the cases of statutory interpretation

Justice Gupta: what is your argument?

#HijabBan

Hegde: when the legislature has not specified anything on uniform in the act, then government order cannot create a new set of disabilities and cannot take away right to attend schools and colleges #HIJABBAN

Justice Gupta: so you are saying rules cannot be issued to make uniforms uniform ?

Justice Dhulia: uniforms uniform

Both the judges laugh

#supremecourt

Hegde: suppose a girl has been asked to wear knee length skirts, cant the girl decide what is her level of modesty?
#hijabban

Justice Gupta: I understood your argument that statute does not have anything on the uniform

Justice Dhulia: but you cannot question the power of them to frame the uniform..

#hijabban

Justice Gupta: I studied when class 11 was in schools. then there was transition as plus two was in colleges and we opted for colleges since there was freedom from uniform, as a school student you have to wear uniform. I opted for college as there was no uniform

Hegde: In South India colleges have uniforms...

Justice Gupta: may be they did not want indiscipline after students like you (laughs)

Hegde: I was a very bad student. No no all colleges have uniform

Justice Dhulia: must be an engineering college?

Hegde: No

Sr Adv Hegde cites judgments on how some students were denied to due to disability etc

Justice Dhulia: Stop taking us to the bylanes etc. come to the highway

Hegde: someties bylanes important. The highway has been set out before the larger bench #hijabban

Hegde: The Sabarimala review case was referred to 9 judges bench. What is the scope and ambit of right under Article 25? what is the scope and extent of word morality under articles 25 and 26?

SC: Where is religious practice here?

#HijabBan

Hegde: there are Quranic verses

Justice Dhulia: strictly speaking this does not come under this particular reference.

Justice Hemant Gupta: more or less you have concluded... let state answer

Justice Gupta: you may have a religious right and can you take that right within an educational institution where an uniform is prescribed. you may be entitled to wear the hijab or scarf, can you carry the right within an educational institution which prescribes uniform..

Justice Gupta: they are not denying right to education what they are saying as state is you come in the uniform...

Hegde: But chunni is there as uniform

#hijabban

Justice Gupta: chunni is used to cover shoulders. Please dont compare chunni to hijab. Sikh women wear it to cover head in gurudwara #hijabban

ASG KM Natraj : the only issue is discipline in an institution and they don't want to follow it

Justice Gupta: how is hijab violating discipline of institution?

ASG: They cannot violate the school uniform code in the garb of religious rites being violated

Karnataka AG P Navadgi: School authorities wrote to us seeking guidance since after Hijab students wore bhagwa shawls and which then led to unrest in educational institutions. this is the background of the Govt order. #HijabBan

Navadgi: State was cautious not to prescribe any uniform but kept it open for every institution to prescribe an uniform. Some institutions have banned Hijab. But challenge is to Govt GO. But here govt did not interdict any right. we only said follow institution rule

Justice Gupta: It was said that Rule 11 does not empower such rule making

Navadgi: Once it was stated that GO was not in question at all..arguments were elevated to Article 25 violation etc henceforth. This challenge was a non starter. #hijabban

Justice Hemant Gupta: so a minority educational institution can go on with a Hijab?

Navadgi: Yes absolutely. They can permit and there is no government interference and government did not cautiously want to interfere

SC: What about govt run institutions?

Navadgi: the college development committees are entrusted to take a call. some have taken order to not allow hijab like the udupi college and that is not under challenge here. #hijabban

Justice Gupta: are the christian run schools allowing hijab?

Navadgi: No they are not allowing

Hegde: they should submit all this in a counter affidavit and since they are not filing it they cannot raise it

#hijabban

ASG: When the statute is silent, the executive power steps in under Article 162 of the Constitution

Sr Adv Devadatt Kamath: My point of argument will be this case does not give rise to any constitutional question

SC: Okay, Mr Dhawan will also argue. Mr Dhawan be ready

SC: List the matter for September 7, 2 pm for hearing.
#hijabban