Thread by @barandbench

Day 2: {Hijab Ban hearing}

Supreme Court to resume 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

Lawyers inform the bench about the compilation submitted #HijabHearing

Lawyer: All the documents have been shared with counsels on a WhatsApp group and I have also carried a pendrive with all the documents. #HijabHearing

Adv Ejaz Maqbool: Can I hand over the pendrive to you. All the petitions are there.

Justice Hemant Gupta: only one pendrive or two?

Maqbool: Yes the law clerk can see..

Justice Gupta: yes we can also see #HijabHearing

SG Tushar Mehta: we will try and not repeat submissions. If everyone starts citing constituent assembly debates

Justice Gupta: we will hear everyone

#HijabHearing

Sr Adv Devadatt Kamath begins: I appear for Ayeshat Shifa. She was a petitioner before the HC. I have prepared a four page note which has contents. My endeavour is to persuade this bench to consider reference of this matter under Article 145(3) of the Constitution

Kamath: If a matter has a substantial question of law then 5 judges has to hear it. But your Lordships have to be satisfied by it.

Kamath: This case involved primarily a basic question as to whether the state has failed in its obligation to provide for reasonable accommodation for the excercise of a student citizens right under Article 19, 21. I am not challenging prescription of uniform.

Kamath: The bench remarked if someone can turn up in jeans in name of fundamental rights. This is not about challenge to uniform?

Justice Gupta: what else the challenge is to ?

Kamath: hijab is not a burqa or a jilbab. This is not that case.

Justice Gupta: what is a jilbab?

Kamath: it's an Urdu word. There is a house of lords judgment on this where the court made a reasonable accommodation in term of salwar kameez and headscarf and this not allowing jilbab a full covering was not unreasonable. #HijabHearing

Kamath: the principle of reasonable accommodation has been accepted by the Supreme Court in numerous judgments. I will only cite a few judgments on this #HijabHearing

Kamath: One case is regarding reasonable accommodation where disabled were to be accomodated. Now next part is whether a student citizen in our constitutional scheme is expected to surrender her Fundamental rights under Article 19, 21 and 25 in order to have access to education?

Kamath: In Bijoy Emmanuel case the argument was rejected that students should leave religion at home and attend school. That was about students not wanting to sing the national anthem. That was on a much larger footing.

Justice Gupta: yes the national anthem case #HijabHearing

Kamath: if the argument of the other side is to be accepted then the students would have been shunted out. This court went on to examine this in a school environment..

Justice Dhulia:there was no insult to national anthem since they stood up.. this case is on a different footing

Sr Advocate Kamath now points to a lady lawyer wearing a hijab in the court room: Please see this milord. She is wearing a headscarf of the colour of the uniform. Is this violating the decorum of this courtroom?

Justice Gupta: you have put up a exhibit on her!

#HijabHearing

Kamath: I had taken her permission prior to the hearing milord!
#HijabHearing

Kamath: Kendriya Vidyalayas, under the Central Government, allow Hijab. This was placed before the High Court. HC says Centre is different than the state. #hijabhearing

Kamath: for the Kendra Vidyalayas head scarf with matching colour of uniform for girls is allowed. It makes a reasonable accommodation for Muslim girls to wear head scarf in schools milord. #hijabhearing

Kamath: there is an illuminating observation on how does a court deal when confronted by a problem like this. "if this is the belief of the community.. a secular judge is bound to accept the belief..he has no right to sit on judgment over this" #hijabhearing

Justice Dhulia: read the last line it is important..

Kamath: ofcourse milord. "we therefore find that fundamental rights infringed.. re admit the students in school and permit them to study without hindrance.. our constitution teaches tolerance and philosophy teaches tolerance"

Justice Dhulia: but this case is on a different footing.

Kamath: no milords! it is not. it shows how fundamental rights were safeguarded even in the school atmosphere. now i will show how reasonable accomodation was made in school atmosphere.

Kamath: Now I will show a South Africa Constitution Bench judgment.. this is a case where a girl wanted to wear a nose ring in school.

Kamath: School took the same stand that if it is allowed then anybody and everyone will wear fancy dress and thus a parade of horribles. the constitutional court said a NO

Justice Gupta: as far as i know nosering is not part of religious belief

Kamath: the court said that nose ring may not be religious central but it was part of the identity of the girl so it was allowed

Justice Gupta: women wear ear ring all across the world and they can also wear nose pin. but is it religious?

Kamath: I am also a part of Hindu religion, a poor student

Justice Gupta: atleast better than me..

Kamath: nose pin is worn by women to develop good virtue and also bring prosperity. It is very much religious #hijabhearing

Sr Adv Kamath reads the South African Constitution court judgment on the Tamil Hindu girl being allowed to wear a nosepin in school against school rules #hijabhearing

Kamath quotes from the SA judgment: "In conclusion, the evidence shows that the nose stud is not a mandatory tenet of Sunali’s religion or culture; Ms Pillay has admitted as much....."

Kamath: "...But the evidence does confirm that the nose stud is a voluntary expression of South Indian Tamil Hindu culture, a culture that is intimately intertwined with Hindu religion, and that Sunali regards it as such..."

Justice Gupta: you have cited judgments on reasonable accomodation.. now you do not have to labour much on this ..

Kamath: please see the severity of the infringement..just two to three more minutes #hijabhearing

Justice Dhulia: there is a lot of emphasis on dignity in the South African court judgment

Kamath: yes which our court has also emphasized in Puttuswamy and others

Justice Gupta: I do not think no other country has as much diversity like our country. All other countries have a uniform law for its citizens!

Kamath: agreed milord

#hijabhearing

Justice Gupta: now forget about South Africa and come to India

Kamath: I cite this judgment as to how this case is encapsulated in our jurisprudence #hijabhearing

Justice Gupta: who said "parade of horribles" in the south african case?

Kamath: this was the state's argument. This is similar to saying like students will wear minis, midis etc.

Read our earlier story: barandbench.com/news/litigatio…

Kamath: Please see US Supreme Court judgment on allowing headcarves...US SC said if the wearing of headscarf is allowed by not causing undue hardship to others then it can be carried on. Now please come to Canada..

Justice Gupta: how do we compare US, Canada to our country. We are very conservative...

Kamath: But good things are always welcome

Justice Gupta: when these courts pass judgment it is dependent on their social and cultural context ! #hijabhearing

Kamath: Please come to a House of Lords judgment. The school had allowed hijab, but the student turned up in burqa or jilbab. Court said school gave reasonable accommodation by way of salwar and headscarf and anything beyond is unreasonable and not just #hijabhearing

Kamath: HC cited this judgment and says in England Hijab is prohibited whereas this is to the contrary. #hijabhearing

Kamath: Secularism which Supreme Court has interpreted is in complete contrast to what exists in Turkey, France etc which is negative expression of secularism where you cannot wear religious attire or symbol in public. we adopt positive secularism. #hijabhearing

Kamat : constitutional standpoint is all religions are manifestation of same god..

Justice Gupta : Does all religions accept this? is this accepted by all religions?

Kamat : this was on Aruna Roy case

Justice Gupta: after 1 hour you are in India
#Hijabhearing

Justice Dhulia: but is the Aruna Roy case similar.. it is not I think..

Kamath refers to aruna roy case #hijabhearing

Kamath: Secularism does not mean that students of one community will not display their religious symbol. Please refer to the Government order
#HijabHearing

Kamath: Karnataka AG said the GO was an innocuous GO. It was startling coming from him after it was argued for 15 days in the HC #HijabHearing

Justice Gupta: Karnataka AG said GO does not say due to which issues will students wear uniforms.

Kamath: That is not true. Here the college development committee says Hijab is not an essential part of Islam and thus need not be followed

#HijabHearing

Justice Gupta: but it is only then who want to wear headscarves to school. All others are wearing uniform..reading of GO may not be correct

Kamath: Every South Indian when they go to school shows some religious identity like Sandhya Vandanam, Rudraksh or even cross
#HijabHearing

Justice Gupta: but rudraksh and cross is inside shirt. No one is removing your shirt to find it out. It is not violating the discipline of the school
#HijabHearing

Kamath: If we make these reasonable accommodations are made only then we can achieve positive secularism..

Justice Dhulia: Is submission on secularism over ?

Kamath : i am on how HC sought to resurrect a constituent assembly debate..

Justice Gupta; the word secularism was not there in original constitution

Kamath: in spirit it was there. it permeates through the entire document

Justice Gupta; We are on the word. I dont know if it was added as a political statement though it was always there

Justice Gupta: Why did the Constituent Assembly rejected the amendment to prohibit display religion in public.. what was the intention

Kamath : Dr.Ambedkar said it was not needed let me show the debate

Kamath : amendment was moved by one Mr. Tajammul Hussain

Kamath: Hussain said "no person shall have any visible sign or mark or name and shall wear any dress where any religion is recognized".. he said one can find easily what religion a person professes in this country unlike US, Europe..#hijabhearing

Kamath: Dr BR Ambedkar did not accept this. Now i state that the GO is violative of Article 14 as it specifically targets visible manifestation of one religious belief #hijabhearing

Kamath: Now on Article 19. It has been held that right to freedom of expression includes dress. Citing the transgender case.. it was held dress is a part of Article 19(1)(a)...
#hijabhearing

Kamath: now reasonable restrictions.. please bear in mind the GO.. i am not saying I wont wear the uniform.. but if with the uniform I wear a headscarf along with it.. will it violate the dress code.

Justice Gupta: show us where dress is held to be a part of Article 19 1 a?

Sr Adv Kamath cites the judgment and the relevant paragraph #hijabhearing

Justice Gupta: We cannot take this to illogical ends.. if you say Right to Dress is a fundamental right then right to undress also becomes a fundamental right!

Kamath: I am not here to make cliche arguments milord. I am proving a point #hijabhearing

Kamath: No one is undressing milord in school !
#hijabhearing

Justice Gupta: no one is denying right to dress

Kamath: wearing this additional dress (hijab) can it be restricted on the basis of Article 19? #hijabhearing

Kamath: the GO ... there is no public order in it. referring to Article 19(2).. then if one wears hijab whose morality is disturbed. then come to Article 21.
#hijabhearing

Justice Gupta: if women want to wear salwar kameez, men want to wear dhoti kurta.. all comes under right to apparel

Kamath: here the question is on whether right to wear hijab can be curtailed #hijabhearing

Kamath: no one is forcing her to wear it, but if the girl choses to wear it can the state prohibit this.

Justice Gupta: no one is prohibiting her to wear the hijab... but only in school.

Kamath: yes but on the basis of constitutional morality, equality..

Justice Gupta: constitutional morality, equality all good..

Kamath: i am on the high court order

Justice Gupta: we are not going by HC order

Kamath: How the HC as a judicial body can say all this? High Court says hijab is against constitutional morality. With due respect, it is her choice. This violates decisional autonomy and growth choice jurisprudence developed by this court under article 21 #hijabhearing

Kamath : High Court gave the example of prisons and says prisoners have no fundamental rights..i was amazed. HC says once you go to school you are in the "custody" of teachers and thus..

AG Prabhuling Navadgi : I will show it..

Kamath: please let me argue. why this interruption

Kamath: so my fundamental rights have become derivative rights

Justice Gupta: but that is not the question which you are raising?

Justice Gupta: this comparison is different... when you follow uniform there is a propriety to this. this is only mode of expression by the high court and you may not like it. but it is not comparing students to undertrial prisoners. #hijabhearing

Kamath: saying that entry in school will not be permitted when in Hijab may violate Article 19. It was laid down by this court that right to education or access to education was a fundamental right and then you say with headscarf education will be denied

SC: ya we got it

Sr Adv Kamath reads Article 25 on freedom to practice and profess religion and it is subject to two set of restrictions.. one is state interest.. that is public order morality or health...other restrictions is that it violates others fundamental rights

Kamath: it is not their case that it violates public orders morality or others fundamental rights. So the government order falls foul of Article 25
#HijabHearing

Kamath: Now the question which arises is restricting Hijab under Article 25(2). #Hijabhearing

Kamath: we really do not have to go into essential religious practice test of Hijab. If i succeed that there is no restriction of state under Article 25(1) and Article 25(2) then I do not have to enter the Essential religious practice test #hijabhearing

Kamath: HC first gets into the ERP and it was like putting cart before the horse.Neither Article 25(1) restriction is satisfied and nor Article 25(2) is satisfied, then there is no case for the ERP #hijabhearing

Justice Hemant Gupta: we will finish miscellaneous matters before 11.30 am tomorrow. We will start the matter at 11.30 am tomorrow

A muslim scholar seeks to intervene in support of ban on hijab in educational institutions

SC: We will allow everybody

#hijabhearing concludes