Thread by @barandbench

Day 3: {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

Sr Adv Kamath: This is the provision in the Constitution provision in South African constitution. It is correct that South Africa is much more diverse, and the scope of protection is wider. #hijabhearing

Kamath: there is one judgment in Austria..there was head scarf ban targeted at one community which was held unconstitutional. It has to be seen that my attire does not fall foul of public order even if its not a core religious practice #hijabhearing

Kamath: Sr Adv Parasaran wears a religious symbol, but does it disrupt public order

Justice Hemant Gupta: you cannot compare lawyers appearing in court as there is a uniform. Other day Dr Dhavan cited pagdi but in Rajasthan people wear Pagdi as a matter of routine. #hijabhearing

Justice Gupta: In Gujarat also there is pagdi which is matter of routine, Am i correct Mr Mehta (SG)

SG: yes pagdi or some cap

Kamath: but it cannot violate public order. Now citing the SC decision which was around carrying out Tandav etc. It was observed that public order cannot be destroyed

Justice Hemant Gupta: you wearing hijab in public does not offend anyone. But if you wear it in school then what kind of public order are we talking about

Kamath: public order here is responsibility of the school. Suppose i wear a head gear on road and there is ruckus, police can come and tell me not to wear it as it disturbs public order

Kamath: In a constitutional scheme Is Hitler's veto permissible? There are precedents which states that such a thing is not possible, This is US judgment which was followed in India by a 2001 judgment #hijabhearing

Kamath: I was on virtual hearing last time and the Karnataka AG said the GO was issued after some students demanded to wear saffron shawls and the ban was imposed in that context. Here the question is can hecklers veto be allowed? #hijabhearing

Kamath: So milord there cannot be a ground that public order will be violated. it is your duty to create an atmosphere where I can exercise my right in accordance with Article 25 of the Indian Constitution ! #hijabhearing

Kamath: this often happens in case of films when some people dont like a film and this court has held that hecklers veto cannot be implemented here when an expert body has cleared the film #ews

Justice Sudhanshu Dhulia: how many volumes of cases?

Kamath: there are 7 volumes. It is cases by both the sides #hijabhearing

Justice Gupta: you are citing a cases which was an apprehended breach of cases

Kamath: that is my argument.. if there is an apprehension of breach of public order how can the hijab be banned

SC: You are still not answering our question #hijabhearing

Justice Gupta: public order is the responsibility of the state, which includes court as well due to lack of public order. there is no dispute about it.

Sr Adv Kamath: I bow down if it is clear that the state cannot take a facile ground like this. I am saying just because there is a disturbance you cannot just ban something. that is what i am saying. Hecklers Veto principle has been adopted by this court.

Kamath: GO uses the term public order. i am not making submissions in the air! If they did not raise it why will I submit it

Justice Dhulia: you read the GO and what dress code came out of it?

#hijabhearing

Justice Hemant Gupta: Do not waste your time on public order Mr Kamath. #hijabhearing

Sr Adv Kamath reads the Government order: wear uniform in the interest of unity and public order

Justice Dhulia: what is the problem?

Justice Gupta: but they say prohibition of headscarf is not a violation of Article 25

Kamath: HC is saying you can prohibit it

Kamath: pursuant to the GO, #hijab clad girls have not been allowed entry.

Justice Dhulia: so they derive powers from the GO. Is there a written order by schools

Kamath: no there are no written orders.

Justice Gupta: this is not a fundamental right violation. it is not the positive right but the negative right that you want to assert

Kamath: Article 25 rights cannot be contained in a pigeonhole of negative rights. It is the penumbra of rights which makes existence worthwhile

Justice Gupta: do you want us to address on all the questions?

Kamath: I am not going on Essential religious practice. I am not on Quranic injunction.

SC: There are 15 counsels

Kamath: none of us will repeat

SC: Okay #hijabhearing

Kamath: Article 25(2). Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

Kamath: state can make a law to regulate secular activities. Right to education act is a social welfare legislation and then they say hijab can be prohibited

Justice Gupta: we have to see what does other secular activity means? the second part is for only Hindus?

Kamath: no this court has held it applies to all religion starting from the Hanific case. State in zeal to put it under 25(2) tried to pick a needle from a haystack

Kamath: Please see the preamble of Karnataka Education Act...Any restriction on right must be direct and proximate, not indirect or inferential. The HC also referred to it. As per the state preamble is a restriction #hijabhearing

Kamath: High Court says the objective of promoting secular outlook as in the Preamble is a restriction. This can never be a constitutional scheme. Where is this that Hijab is lowering dignity? then comes Section 7 of the Act. #hijabhearing

Kamath: section 7 is about scheme to promote harmony which the State can make under Section 7. this has been construed as a restriction on wearing hijab #hijabhearing

Kamath: Here the High court has stated that the GO is as clear as Gangetic water.. but I would say that its totally muddy. A link such as this must be proximate and rational and direct #hijabhearing

Kamath: restriction on public order must be real and proximate and not far fetched. #hijabhearing

Kamath: Is there a restriction on wearing headscarf under law. there are none. #hijabhearing

Justice Gupta: You have covered question 17 also.

Kamath: now the question whether uniformity in public can be a ground to ban hijab, the next question is on discipline .. does hijab violate discipline.. it does not. Then I come to the point of religious jingoism.

Kamath: Wearing of an orange shawl is not an innocent display of faith. Wearing orange shawl is an belligerent display of faith and Article 25 does not protect it. rudraksh, namam, etc are innocent display of faith #hijabhearing

Kamath: HC says freedom of conscience and freedom of religion is mutually exclusion. it is either, or. in my submission that is not the case. #hijabhearing

Kamath: an example nothing to do with hijab. our hindu scriptures provide for 16 elements involved in puja. today someone lights a diya. is it freedom of religion or freedom of conscience.

Kamath: In Hindu religion we worship deities and somebody carries photo of krishna or rama in my pocket,.. i used to carry a photo.. it gave me security... is it freedom of religion or conscience. the boundaries where one ends and another begins... such borders are nebulous.

Kamath: HC has entered a dangerous zone, and all these rights are dependent on each other. that is why our constitution framers have also not entered this domain #hijabhearing

Kamath: Yes, constitution framers were very erudite people but whatever they said cannot be taken as gospel truth, the chairman Dr Ambedkar can be of some relevance. in this case Shri Ghanshyam Singh Gupta spoke on freedom of conscience. #hijabhearing

Justice Dhulia: there may be a person who don't follow any religion..

Kamath: yes one may not, but he may follow a religious practice of one religion and there lies the intersection #hijabhearing

Justice Gupta: Mr Kamath I think you have breached your time limit

Kamath: Just 10 to 15 minutes more.

#hijabhearing

Justice Dhulia : According to you, essential religious practice is not to be seen in article 25?

Kamat : I say at the second stage. we have to first see if it is a valid constitutional restriction

Justice Dhulia: no but if it's not ERP then no question of entering this

Kamath: Regarding ERP, there is a divergence of views between Karnataka, Kerala and Madras High Court judgments on whether hijab is an essential religious practice. Madras and Kerala have held it is essential, Karnataka HC has not agreed.

Sr Adv Kamat cites the issues framed by the larger bench in Sabarimala review case: this deals with scope of judicial review in such religious affairs cases. On the face of it this GO cannot stand for several reasons #hijabhearing

Justice Gupta: we have seen the GO

Kamath: please see the reasons I am citing. there are three judgments referred and none of the judgments say that Hijab is not protected under Article 25. this GO suffers from non application of mind as none of these cases are on Hijab

Kamath: HC says reasons do not matter and since power is there and it is sufficient. My submission is either GO stand on its own or falls. HC has supplanted reasons for the GO and that is impermissible.

Kamath: further such a power cannot be given to the college development committee. the committee has t has MLA, parents. I submit that such a power cannot be delegated to a non-State actor. MLA is the president milord. Please see the repercussions.

Justice Gupta: so you dont want a representative people to be there?

Kamath: this court has HELD that a MLA is not an authority subordinate to the state govt. can these eminent people decide what is moral ? look at the enormity of such decisions which is totally illegal

Kamath: even on administration law principle, it is a complete violation of Section 143 of the act. HC says it was not challenged but i need not. inputs are welcome from an MLA but when invest state power on them then that becomes the problem #hijabhearing

Justice Gupta: thank you Mr Kamath..

Kamath: please see my prayer on Article 145(3).. it is mandatory to refer..see what 9 judges of this court held..that is why constitution entrusts this work to a 5 judge bench atleast. i am grateful for a very patient hearing

Sr Advocate Devadatt Kamat concludes submissions in the #HijabHearing case

Advocate Nizamuddin Pasha submits on the point of Essential Religious Practice: i am a student of Islam and Arabic. The first question which needs to be answered in what is the test of ERP #hijabhearing

Pasha refers to the Shirur Mutt case: AG in Shirur Mutt case said all secular activity concerned with religion but may not be ERP falls under state regulation. this argument was rejected. #hijabhearing

Justice Gupta: Let me read the judgment
#hijabhearing

Pasha: In Dargah committee case the test of essentiality was formulated. It was a 5 judge bench. Justice Gajendragadkar authored the judgment.
#hijabhearing

Pasha: law on ERP is by way of an obiter in the judgment.

Justice Dhulia: what is the argument?

Pasha: whether or not ERP has to be protected or all religious practice has to be protected is the question. All cases from seven to five judges have differed
#hijabhearing

Pasha: In a composition of two judges bench you have to decide whether this conflict between Shirur mutt, dargah committee and bijoy manuel can resolved by this bench. 7 and 5 judges have a conflict and then three judges differed and now 9 judges are seized of it #hijabhearing

Justice Hemant Gupta: if that situation arises we will look into it
#hijabhearing

Pasha now cites the Babri Masjid judgment: please see the word of caution sounded by 5-judges in Babri Masjid judgment regarding reading of scriptures. "this court must be careful while choosing out of many interpretations of theological doctrines" #hijabhearing

Pasha: culture and religion is intertwined. SC said "this court must reject any attempt to interpret religious scriptures"

Justice Hemant Gupta: question was whether Ram Lalla was there or not.. that is why this para 19 etc was made

Pasha: wearing of hijab is a spiritual practice and prayer is also the same. I fail to understand the distinction between the same. Court cannot say this reading of scripture is correct and and this is not correct.

Pasha: shayara bano case is often cited to show how muslim religious scripture be interpreted, but that is not correct. Justice Kurian Joseph interprets religious scripture in shayara bano, Justice Nariman did not and there was no unanimity among three judges on that point.

The #hijabhearing to continue at 2 pm.
#SupremeCourt

The two-judge bench to assemble shortly
#HijabHearing

Pasha: : please let me highlight 3 sources of Mohammedan Law. Quran, Hadis(sayings and traditions of Prophet), Ijma, Qiyas. HC cites and starts unrelated phrase that nothing is compulsion in religion and uses it to declare that #Hijab is not mandatory.

Pasha: The verse which shows no one can be compelled to convert has been used to hold Hijab is not mandatory in this case.

Justice Gupta : tell us which verses which say hijab is necessary?

Pasha: please see the verse which shows how women should draw veil over bosom and how even for men lowering the gaze is important. #hijabhearing

Pasha: the word used in Quran for Hijab is Khimar. In India we call it Hijab. Like in Arabic prayer is called Salah and in India we call it Namaaz. It is one of the pillar of Islam. Khimar is defined in oxford dictionary as a piece of cloth covering head #hijabhearing

Pasha: Since this is an Arabic word, you will find it in the thin volume citing the translations of the word. #hijabhearing

Pasha: Khimar is a veil covering head and face of women. It is important since some readers of Quran like Abdullah Yousuf Ali..

Justice Dhulia: just take us to the part of the judgment where it has been dealt with and then make your submissions

#hijabhearing

Pasha: Please see page 62 of the High Court judgment. HC says such practice must be binding in nature and must be compelling in nature. HC had quoted the Prophet saying "let there be no compulsion in religion", this is a gross is misunderstanding of the verse. It is on conversion

Pasha: conversion cannot be forced and no one can be converted to Islam if they dont want to. that was the idea behind let there be no compulsion. Now the 5 pillars of Islam

#hijabhearing

Justice Gupta: what are they?

Pasha: Tauheed (faith in Allah, destiny and commandments), Roza, Namaz, Zakaat and Hajj

#hijabhearing

Justice Gupta: Okay it is Tauheed.. I wrote Tauheen

Pasha: It is imaan.. it is quite the opposite.

Justice Gupta: Can you spell it

Pasha spells it: it is the belief in oneness of Allah and the books of Allah, angels of Allah and the destiny #hijabhearing

Pasha: what is written in the Quran is part of Tauheed. you may give charity but if you dont have faith it will not be zakaat. So first tenet of Islam is about you have to believe in one ness of God

Justice Dhulia: again you are taking the other way round..tell us about order

Adv Pasha now turns to Surah An Nur

Justice Dhulia: Is hijab specific to Islam

Pasha: that is why verses are important.. Surah An nur... shows how women should draw veil over their bosoms..

Pasha now cites Surah Al Ahzab: Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested. #hijabhearing

Pasha: the HC order now cites that hijab is a mere screen or partition or a veil

Justice Gupta: You read the Quran, then Hadees. Where are we?

Pasha: Surahs are verses of Quran. there are 114 chapters of Quran

Justice Gupta: sorry i am showing my ignorance

Pasha: HC judgment now comes on hijab ... milord hijab marks the difference and protects the identity of a Muslim women. This was there a because muslim women had to be identified as a part of a strong community and so that incidents of molestation etc does not happen to them

Pasha: Jilbab is when entire body is covered with a robe. Hijab is only the head

Justice Gupta: how is it different from Burqa?

Pasha: it is a colloquial term, similar #hijabhearing

Justice Gupta: What is the word OFT used after God?

Pasha : It is for often. In Quran, like Bible, old English is uses for translation. There will be words like Thine like we use showeth in our submissions..

Pasha: HC judgment has drawn a conclusion from footnote that verse is recommendary and not mandatory.

#Justice Dhulia: you are on Abdullah Yousuf Ali translation?#hijabhearing

Pasha: But footnote is not here it is from somewhere else and pasted here to show as if it is a footnote here which is not the case HC judgment has drawn a conclusion from footnote that verse is recommendary and not mandatory.

Pasha: But footnote is not here it is from somewhere else and pasted here to show as if it is a footnote here which is not the case.

Justice Dhulia: but the footnote here is 57,, correct no?

Pasha: no it concerns Jilbab and not Hijab. many feel jilbab is not mandatory but bench has considered to be the footnote of hijab..

Justice Dhulia: so the scholar says God will forgive you if you dont wear jilbab. But this is not about Hijab.

Pasha: absolutely milord.

Justice Dhulia: where is it about Hijab?

Pasha: Surah 24 is about Khimar. If you see the commentary here... it means that even if women meet other women who are not part of a household then also you wear the hijab...

#hijabhearing

Justice Gupta: Please carry a proper print out of Verse 35.. and its commentary

Pasha: ofcourse milord. thus due to misreading of the commentary HC comes to the conclusion that Hijab is only recommended and not mandatory in nature

Justice Gupta: let us read

#hijabhearing

Pasha: there is no temporal punishment for a violation of the spiritual act. here it is only about wrath of hellfire and there is no penalty in this world. If i fail anything of five pillars there is no temporal punishment.

#hijabhearing

Justice Gupta: one is desirable aspect and one is mandatory aspect...

Justice Dhulia: we are on directory and mandatory

Justice Gupta: show us the verse on Tauheed

Pasha: I can take a minute to read out that part #hijabhearing

Justice Gupta: you are saying there is no temporal punishment for hijab... where is this coming from? so no temporal punishment for namaz, zakaat etc... then hijab is at much lower footing. how can it be mandatory

Pasha: it is all word of God and the belief in the word of God.

Justice Gupta: Mr Pasha you have explained your point very well.
#hijabhearing

Pasha: please see the HC order which says that #Hijab is at best a cultural practice only. these are not finding based reasoning but the assumption of judges only.

Pasha: HC judgment cites opinions of commentators are but even that does not support the conclusion. these are not even the verses

#hijabhearing

Pasha: The commentator speaks about the time when Islam originated there was jahaliyyah and there were incidents of molestations and how hypocrites thrived then. But the HC says that since this is about that time it has no implication now.

Justice Gupta: you are right

Pasha: The last verse of Quran meant that religion of Islam was perfected by God for all times to come. HC saying that verse of Quran is not relevant now anymore borders on blasphemy!

Justice Dhulia: don't go so far

Pasha: the commentator is not saying this, the judge is saying

Now coming to Hadees, Aisha the wife of Prophet narrated the hadith. It is a way of understanding the Quran. Aisha used to say that ladies used to draw the veil over their bosoms: Pasha

Pasha: when a believing girl says that she wants to wear the hijab as its more important to her than the whole world, and then giving the woman a choice between education and hijab it is like depriving her of a choice milord #hijabhearing

Pasha cites Suran An Nisa: this is a verse on woman. Quran says obey God and obey the Prophet. nothing can be greater than this #hijabhearing

Pasha: High Court questioned the translation placed by Muhammad Muhsin Khan, doubting his credentials. It was because of Shia and Sunni. How can that be a basis? The triple talaq was not even there in Quran or Hadees and that is why 1400 year old practice was not lawful

Pasha: But Hijab is there in the Quran and the scripture. Then HC judge while disclosing sources cires Muhammad Muhsin Khan.

Justice Gupta: give us a short note on the couple of verses #hijabhearing

Pasha: this case will require an reference on the interpretation of Article 29

Justice Dhulia: Article 29(1) is not attracted here

Pasha: even as a cultural practice is protected like wearing of a pagdi. even then wearing of hijab is protected

#hijabhearing

Pasha: when hijab is a part of religion of a girl then can the girl be stopped from coming to school. Even Sikhs were turban

Justice Gupta: there are statutory requirement on Turbans. Five judge bench of this court held that wearing turban and kirpan is allowed for Sikhs

Justice Gupta: that is why we are saying comparison with Sikh may not be proper. 5 Ks of Sikh has been held to be mandatory.

#hijabhearing

Pasha: like the 5Ks is the 5 pillars of Islam and that is the exact position for us. unlike France, Sikh boys here wear turban to school and it did not interfere with the discipline of the school #hijabhearing

Justice Gupta: please do not compare with Sikhism It has been completely ingrained in Indian culture

Pasha: so similarly Islam is also there for 1400 years and the Hijab is also present.

Pasha: i was hearing arguments on France and it was like we are deluding ourselves

Justice Dhulia: dont even go there. then you dont have any case. you will not even stand if we go there. we are not going there #hijabhearing

Pasha : We are deluding ourselves if we think we are like France.

Justice Gupta : We do not want to be at par with France or Austria. We are Indians and want to be in India

Pasha: please see the human impact of what we are considering today #hijabhearing

Pasha: a survey of Sikh students in France show how they felt humiliated to enter school. It showed how they lost their identity and how they wanted to leave the country. Even Muslims. 806 Muslim students were negatively impacted. #hijabhearing

Justice Dhulia: have you submitted this report to HC?

Pasha: No milord. i am submitting this here.

#hijabhearing

Justice Gupta: Mr Kamath said God is one and there are different ways to achieve it. But I said Hinduism says so but what about other religion?

Pasha cites the chapter on non-believers: ˹O Prophet,˺ “O you disbelievers! I do not worship what you worship, nor do you worship what I worship. I will never worship what you worship, nor will you ever worship what I worship. You have your way, and I have my Way.”

#HijabHearing case to continue on September 12, 2022

Sr Adv Salman Khurshid: I am happy this hearing is moving fast. whichever God it is.. every good thing must happen fast and the blessings will be on you

SC: yes... Please take 30 minutes

Khurshid: i will be concise