Thread by @barandbench

Day 5: [Hijab Ban hearing]

The Supreme Court will soon resume hearing a batch of appeals challenging the Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan

Read details on the previous hearing here.
barandbench.com/news/litigatio…

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Hearing begins.

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Senior Advocate Aditya Sondhi argues.

Sr Adv Sondhi: I will only deal with two-three aspects.

One is, the element of indirect discrimination which emanates from the order.

Refers to Nitisha Singh v Union of India judgement

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan

Sr Adv Sondhi reads from the judgment.

indiankanoon.org/doc/190567716/

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Sr Adv Sondhi: These socio-economic criteria and background to which students belong needs to be considered.

I had Muslim classmates in law school who did not wear the Hijab. It is a choice.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Sr Adv Sondhi: The principle of having such a heavy burden cast on the students.

There is one judgment of the US Supreme Court relating to Jehovah's witnesses which ties in with what Dr Ambedkar said.

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Sr Adv Sondhi: May I only place my note of submission? This was a case where a Jehovah's witness was employed in an arms industry.

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Sr Adv Sondhi: I am pressing to service this judgement to hold that there could be intra-faith differences.

Second, the emphasis in this judgment is on the burden cast in choosing.

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Sr Adv Sondhi: The students are compelled to choose, and they are forced out of education.

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Sr Adv Sondhi: I have placed the National Education Policy.

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Sr Adv Sondhi: I refer to the finding of the Sachar Committee Report which concluded the discrimination that Muslim women were facing on account of their practices of wearing the Hijab, Burqa and so on.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Sr Adv Sondhi refers to the Hobsons Choice explained in the report.

Justice Gupta: This reference by Dr Ambedkar, how is it relevant in your case?

Sr Adv Sondhi: It shows the predicament the girls are facing

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Sr Adv Sondhi now refers to a judgment of the Nigerian Supreme Court regarding the prescription against Hijab.

The court had allowed use of Hijab in public schools in Lagos.

Reads the judgment.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Sr Adv Sondhi: The facts are that the State of Nigeria had precluded girls from wearing Hijab on certain days.

The conclusion was that-

1) ample material to Hijab essential.
2) Even if not, it certainly relates to sense of identity.

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Court: Can you read that part?

Sr Adv Sondhi reads the conclusion of the judgment.

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Sr Adv Sondhi: The government order finally leaves it to the schools. But the entire preamble refers even to public order.

What public order arises in these circumstances? On facts, the girls have been wearing.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Sr Adv Sondhi: In Lohia's case, the test of public order is of a very high standard.

Finally, I would submit that the burden of proof where a limitation is placed on 19 or 25, would be on the state.

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Sr Adv Sondhi: Under 19, the burden shifts on the State.

I have extracted it for your convenience.

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Sr Adv Sondhi: The language of 19(2) is akin to 25(2).

The Karnataka HC in a recent judgment that the Kodavas actually have a right to carry arms.

That line between a religious fight or cultural right is a thinning line.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Senior Advocate Dushyant Dave requests court to hear him tomorrow.

Justice Gupta: Same arguments by different people.. it becomes a bit heavy for us.

Sr Adv Dave: The issue is heavy, My Lord..

Court agrees to hear Dave tomorrow.

Senior Advocate Rajeev Dhawan begins arguments: The right to dress is part of free speech, and it is only subject to public order.

Second, the doctrine of privacy- Puttuswamy and NALSA have already been cited.

Third, the essential practices test. Here there is a difference.

Sr Adv Dhawan: The most important part would be lost if we don't look at the fourth entitlement.

A person wearing Hijab cannot be discriminated against on grounds of religion and sex.

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Sr Adv Dhawan: This is particularly important. It is not simply a case of disciple.

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Sr Adv Dhawan: The headlines were not "Dress code upheld", but "Hijab set aside".

Court: Mr Dhawan, what the papers say, we can't go by that.

Sr Adv Dhawan: No I am not concerned with sensationalism.

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Sr Adv Dhawan: Unless we put this case in its proper perspective.. we know that today there is a lot of discontentment in the majority community to knock down whatever comes as Islam.

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Sr Adv Dhawan: We can see that in cow lynching..

Justice Gupta: You will be well-advised to stick to the facts.

Sr Adv Dhawan: I am on discrimination.

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Sr Adv Dhawan: My petitioner is in ore-university college and has won karate championships with a headscarf.

Justice Gupta: We are aware of the history.

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Sr Adv Dhawan: This imposition came through the development committees. The students were heckled and they were discriminated against. That is what the case is really about.

The principal refused to meet the parents.

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Court: Is this happening in only one school?

Sr Adv Dhawan: the interpretation in this judgment is that it's directory. This heckling is taking place all over the place, but across India..

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Dhawan: .. across the world, the Hijab is recognised as valid. The argument is not about the headscarf. The argument is about the Jilbab.

This is a matter to decide on the gender & religious rights.

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Sr Adv Dhawan: This is not a standard practice, to abolish Hijab. It's Karnataka specific in this case.

Justice Dhulia: It started in only school?

Sr Adv Dhawan: Yes, but then it spread.

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Sr Adv Dhawan: It is simply poking at one aspect of a religion, saying let's see if we can get this one aspect struck off.

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Sr Adv Dhawan: Earlier the government had taken a clear position that the Hijab was not to be interfered with. That is in my list of dates.

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Sr Adv Dhawan takes court through the government order's reasoning.

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Sr Adv Dhawan: What it said is that a private school can go whichever way it likes.

I'm not making Mr Hegde's argument on ultra vires. I'm saying that the entire foundation is false.

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Sr Adv Dhawan: Public order is not mentioned anywhere.

As far as private school are concerned, only uniforms prescribed by the admin committee. This is a charter not of enforcing Hijab, but liberalising it.

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Sr Adv Dhawan: It has no foundation whatsoever either by justification or the actual script.

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Sr Adv Dhawan: While I'm here.. let me also deal with one or two aspects that might help you answer the question Justice Dhulia placed.

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Sr Adv Dhawan: The argument is that schools are qualified public places. Just because some place is so, does that mean the Hijab can be worn there? Even the argument of discipline is not made.

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Sr Adv Dhawan: The Kendriya Vidyalayas permit the Hijab, they say that's the KV's business. There is a mosaic of tests that exists but there is no justification.

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Sr Adv Dhawan on Essential Religious Practices (ERP): What we don't want is for Your Lordships to become the high priests of every religion.

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Justice Dhulia: You argue other aspects.

Sr Adv Dhavan: if it's an ERP, then it is protected. What is the way out? The way out in the 1954 decision is this- it defines what ERP is.

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Sr Adv Dhavan: It says that once it is bona fide, it is good enough for Your Lordships.

Court: Show us that.

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Justice Gupta: Mr Dhawan, you say courts are not equipped. But then who will decide a dispute?

Sr Adv Dhavan: The dispute is whether it's an ERP.

Justice Dhulia: It may or may not be ERP, but we are saying- then there may be an expert

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Sr Adv Dhavan: All I'm saying is that, in this impugned judgment the conclusion is that it is directory.

The question of ERP first came.. the emphasis was on how you describe it.

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Sr Adv Dhavan takes court through the judgment in Commissioner Hindu Religious Endowments v Sri Lakshmindra Thirtha.

indiankanoon.org/doc/1430396/

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Sr Adv Dhavan: If something is done according to tenets of a faith, and is bona fide.. you don't even have to go back to the Vedas or any other text.

We have to examine if the practice is prevalent or not, and it is not mala fide.

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Sr Adv Dhavan refers to the judgement in Ratilal Panachand Gandhi v State Of Bombay: It is the foundational case for bona fide.

indiankanoon.org/doc/1307370/

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Sr Adv Dhavan further reads: "No outside authority has any right to say that these are not essential parts of religion and it. is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate"

Sr Adv Dhavan: Therefore, if it is showed that Hijab is prevalent in Karnataka, no secular authority can say it's not.

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Sr Adv Dhavan: If there is a question to be decided, I can understand going into historical facts but sitting in judgment whether this right or wrong is different.

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Sr Adv Dhavan refers to the judgment of the Kerala High Court in Amnah Bint Basheer v CBSE.

indiankanoon.org/doc/185172001/

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Sr Adv Dhavan: The impugned judgment uses the word "directory". Having looked at the Hijab and those many verses of the conclusion was:

"Thus, the analysis of the Quranic injunctions and the Hadiths would show that it is a farz to cover the head and wear the long sleeved..

Court: What is the basis of calling this a "farz"?

Sr Adv Dhavan: They have analysed.

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Justice Gupta: Exactly what you don't want us to do, the Kerala High Court has done.

Sr Adv Dhavan: I agree. Even if that exercise was not undertaken.. even if a practice is prevalent and not mala fide that is all that is needed.

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Justice Gupta: That is irrespective of Holy Book?

Sr Adv Dhavan: Only provided it is not against the book. To that extent, inquiry is permitted.

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Sr Adv Dhavan: The fact that millions of women are wearing the scarf bona fide.. Hijab across the board is permissible. What is the justification to say that it is opposed to public order? None. What makes it a reasonable restriction?

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Sr Adv Dhavan: When you are devising a uniform- you can say that we won't allow Burqa.. but for what justification can you say that the headscarf..?

I won't take Your Lordships further into this..

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Sr Adv Dhavan: The test is one of proportionality - is to take the least invasive approach. Take for example, one of the suggestions by the pupils was that we'll wear a headscarf is the same colour as the uniform.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Dhavan refers to a judgment in the case of Mohamed Fugicha v Methodist Church in Kenya.

kenyalaw.org/caselaw/cases/…

Now this is the right approach: Dhavan.

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Sr Adv Dhavan takes court through his list of dates.

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Sr Adv Dhavan: This is what this case is really about- "Hijab must go" campaign.

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Sr Adv Dhavan: To summarise, this is not a yes or no issue. This is not an issue of a disciplinary code. What are the obligations on the authority to bring a measure of inclusiveness and apply the least restrictive approach?

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Sr Adv Dhavan: Neither is there a foundation. It is probably targetting Muslims, and Muslim women in particular - violative of Article 14.

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Sr Adv Rajeev concludes arguments.

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Senior Advocate AM Dar seeks permission to explain "farz".

Court asks him to wait for his turn: Don't be restless!

Senior Advocate Huzefa Ahmadi begins submissions.

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Sr Adv Ahmadi: Right from the preamble the constitution speaks of fraternity. It means accepting all faiths. It does not lie in saying that we standardise everything. That is the anti-thesis of fraternity.

Second is, human dignity.

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Sr Adv Ahmadi: Third, what is legitimate state interest? It is in encouraging education specially in minors.

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Sr Adv Ahmadi: Restrictive practices will result in drop outs. This circular is opposed to legitimate state interest and public interest.

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Sr Adv Ahmadi: Fourth, the act actually encourages unity in diversity. Far from saying you must be restrictive.

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Sr Adv Ahmadi: Last, it is indirectly discriminatory.

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Sr Adv Ahmadi: There is a qaundry.. what was said in Sabrimala is that we are not sure which test will apply.

Whether ERP test be applied, does the court accept view of religious leader, or will every religious practice qualify?

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Sr Adv Ahmadi: Today we are not very clear on which test will apply.

Justice Dhulia: If we go with ERP, it may apply. Therefore wait till the decision.

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Sr Adv Ahmadi: It's not very clear as to how this aspect will be decided..

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Sr Adv Ahmadi reads the preamble of the Constitution.

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Sr Adv Ahmadi: It's very important - fraternity is not used in extension. Such that it assures dignity, and the unity and integrity of the nation.

Dignity of individual is put first.

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Sr Adv Ahmadi reads Article 51 A of the Constitution.

indiankanoon.org/doc/867010/

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Court breaks for lunch. Senior Advocate Ahmadi will continue at 2 pm.

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Hearing resumes.

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Sr Adv Ahmad continues, refers to two judgments to interpret the word "fraternity": It's not received that much of interpretation.

Justice Dhulia: Equality & Liberty have a very clear meaning now.

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Sr Adv Ahmad: In the preamble, liberty & equality is qualified but fraternity is not.

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Justice Gupta: Dignity is a very wide.. therefore, fraternity will be wide

Justice Dhulia refers to Hindi translation of fraternity.

Justice Gupta: Like secular, what is the meaning of secular? Dharam and panth are different.

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Justice Gupta: We did not become secular just by adding the word. Even before we were secular.

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Sr Adv Ahmadi discusses judgments on the interpretation of "fraternity".

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Sr Adv Ahmadi is reading from the judgment in the case of Subramanian Swamy v Union of India.

indiankanoon.org/doc/80997184/

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Next Sr Adv Ahmadi refers to the Indra Sawhney judgment.

Justice Gupta: Who is the author of this part?

Sr Adv Ahmadi: Justice Sawant.

Justice Gupta: He is minority.

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Sr Adv Ahmadi now refers to Prathvi Raj Chauhan v Union of India.

indiankanoon.org/doc/31336209/

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Sr Adv Ahmadi: The GO misunderstands the concept of fraternity and confuses it as an anti-thesis of diversity.

"transcending your group identity" is not fraternity at all.

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Sr Adv Ahmadi reads the order: Now again "uniformity" is wrongly confused with fraternity and unity.

Justice Dhulia: When they were writing this GO, they didn't know it would be under such scrutiny.

Justice Gupta: You're right, they should have been more aware of this fact.

Sr Adv Ahmadi: What I have to say is this- there is a common thread which runs through the GO which is that uniformity in terms of dress, in terms of thought, teaching is the common thread.

That is what the GO seeks to understand as legitimate state interest

Sr Adv Ahmadi: It's the opposite! Legitimate state interest is to encourage diversity. Not standardise everything.

I am not on semantics.

This appears to be the raison de etre of the GO.

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Sr Adv Ahmadi: There are two ways of reading the GO- either how I said, or we read it bereft of any semantics.

Why should anyone get prevoked if someone wears a Hijab to school? Why should any other student have a problem?

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Sr Adv Ahmadi: If it does, you have to address that. Otherwise you're allowing someone to be bullied. We hardly want that.

To say - I will not accept someone else wearing the Hijab is contrary to fraternity in the preamble.

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Justice Dhulia: The GO does not say no to hijab, it says nothing wrong with it if you do.

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Sr Adv Ahmadi refers to the case of Tehseen S Poonawalla v Union Of India.

indiankanoon.org/doc/71965246/

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Sr Adv Ahmadi: I'm touching on this "qualified public spaces", it's not a legal concept or a known concept in public policy.

Not all public spaces are similar in nature.

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Sr Adv Ahmadi: National Education Policy emphasises that schools are places for diversity, encouraging critical thinking.

It does not mention uniform or discipline even once.

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Sr Adv Ahmadi: The GO, by disallowing the Hijab creates an arbitrary barrier for education and fraternity.

The GO infringes upon the preambulory promise of fraternity.

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Sr Adv Ahmadi: The consequence of this GO, this class of students who were earlier restricted to the madrasas had got out of those stereotypes and started going to school and having secular education.

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Sr Adv Ahmadi: Their parents didn't object, provided that they followed basic religious practices.

Justice Dhulia: This aspect has not been elaborated by the others.

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Sr Adv Ahmadi: What is the effect of the GO?

Justice Gupta: There is no foundation for that. That is not the case at all. This is an argument you've developed at this stage. It was not part of the petition.

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Justice Gupta: This should arise from pleadings, not from abstract.

Sr Adv Ahmadi: First Your Lordship applies the common sense principle of this. Isn't this a common sensical fall out of the GO?

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Sr Adv Ahmadi: We all know why these people wear Hijab.

Justice Gupta: Some of you are students of all-girls school.

Sr Adv Ahmadi: That does not matter.

Justice Gupta: This is on your argument of conservativeness

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Sr Adv Ahmadi: It is well known that most girl students wearing the Hijab come from conservative families.

Is it not a common sense fall out of the GO?

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Justice Dhulia: Is it your argument that the girl students don't actually want to wear the Hijab and are being forced to wear it?

Sr Adv Ahmadi: No, no. Only then parents will not let them come to school

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Sr Adv Ahmadi: As a welfare state, isn't education your priority? Where does public interest lie?

Justice Dhulia: This was never argued. Never.

Sr Adv Ahmadi: There is also a PUCL report which came subsequently

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Justice Gupta: Mr Ahmadi, you need to speed up i think.

Sr Adv Ahmadi: If there is anything I'm repeating My Lord, let me know.

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Court: So the fall out will be that the girl students will have to go back to Madrasas?

Sr Adv Ahmadi: Yes. It will spell a death a knell for their secular education. The girl students have broken barriers.

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Sr Adv Ahmadi refers to PUCL report.

Justice Gupta: Please come page 6.. you can criticize a judgement but if the basis is the critique of the judgment then probably the basis is not right.

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Sr Adv Ahmadi: I am saying ignore that. But go on the testimonies of the girls.

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Sr Adv Ahmadi reads from the PUCL report.

pucl.org/reports/impact…

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Sr Adv Ahmadi: Article 29 (1) protects cultural rights which is absolute. If you don't fit it in 25, it will certainly be a cultural right.

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Justice Dhulia: It does not speak of religion.

Sr Adv Ahmadi: It does not. It's unique to our constitution because we intend to protect our culture. Assuming it is not strictly speaking "religious".

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Sr Adv Ahmadi refers to people wearing pheta in official capacity.

Justice Gupta: It was a done thing. With the passage of time, we've lost the practice.

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Sr Adv Ahmadi: I ask myself, does the state's priority lie with promoting education or with this? Is the Hijab so very intrusive, that you have to ban it?

And if it does, who's fault is the provocation?

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Ahmadi refers to the Karnataka Education Act: What is relied as a purported source of the GO is said to be Section 7 (2).

Takes court through objects of the Act.

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Sr Adv Ahmadi: Can it possibly be conceived that the GO is related to these provisions?

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Sr Adv Ahmadi: The strand that runs through the act is accomodation of religious belief.

There is also a peripheral aspect of providing one year notice to change a uniform.

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Court: But there is no change in uniform.

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Sr Adv Ahmadi: The act does not give them the power because it neither furthers national integration nor any other purpose highlighted.

In fact, the act speaks of reasonable accommodation.

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Sr Adv Ahmadi submits regarding legitimate state interest.

Justice Gupta: I think Mr Kamat has addressed on this

Sr Adv Ahmadi mentions Article 21

Justice Dhulia: See Article 21 (a) will not come, that is for elementary education

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Sr Adv Ahmadi: Deos public interest lie in enforcing discipline or promoting education. And what is the degree of discipline affected by allowing someone to wear the Hijab?

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Sr Adv Ahmadi: If the order targets a particular community even if appearing neutral, it will run foul of Article 14.

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Court: The issue of drop out rate was never raised before the High Court. You are arguing for the first time.

Sr Adv Ahmadi: The effect of the judgment could not be argued before the judgment.

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Justice Dhulia: Judgment is from March 2022.. do you think there can be an authentic study?

Sr Adv Ahmadi: The PUCL report..

Justice Gupta: We don't want to say anything about reports. We don't accept

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Sr Adv Ahmadi: Merely because an argument was not made before, I am not foreclosed.

Justice Dhulia: Do you have the figures?

Sr Adv Ahmadi: The PUCL report.

Sr Adv AM Dar again attempts to submit, informs Sr Adv Ahmadi that 17k students dropped out.

Justice Gupta tells him not to interrupt, wait his turn to submit.

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Sr Adv Ahmadi is reading testimonials from students as documented in the PUCL report.

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Sr Adv Ahmadi refers to a judgment: Even if a facially neutral law is discriminatory, it has to be struck down.

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Sr Adv Ahmadi: In summation, here is a community where certain students have been able to break stereotypes and go to schools albeit with a head scarf.

The GO will strike a death knell for such students.

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Senior Advocate Huzefa Ahmadi concludes.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Counsel seek time to argue tomorrow.

Sr Adv Colin Gonsalves: I can speak for all of us, we will not repeat.

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Justice Gupta: We will grant fifteen minutes to all laywers. Please complete by end of the day tomorrow.

We'll start around 11 am.

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Justice Dhulia: What is new to be said? Everything is covered.

Counsel: There are a few things left.

Justice Gupta: Tomorrow will be the sixth day. 15 minutes, I make it absolutely clear.

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Hearing concludes for the day, to continue tomorrow.

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