Thread by @barandbench

Day 6: [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

Hearing begins.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan #HijabHearing

Senior Advocate Jayna Kothari seeks to make submissions today: By virtue of having come from Bengaluru.. May i be allowed to submit for 15 minutes?

Court: We will hear everyone today. We will give Mr Dave half an hour.

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Senior Advocate Dushyant Dave: I will take more than that. With utmost respect. This is an important matter.

Court allows Sr counsel Kothari to argue first.

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Sr Adv Jayna Kothari: I will be arguing on Article 15 (1) on discrimination based on religion and gender. Intersectional discrimination has been recognised by this court.

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Sr Adv Kothari: The first decision on how prohibition of wearing Hijab causes discrimination is.. there is a UK decision where a girl want to wear a "kada" which was not allowed by the school as jewellery was not allowed.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Kothari reads, "I am unable to accept the contention that there will only be "a particular disadvantage" or "detriment" where a member of the group is prevented from wearing something which he or she is required by his or her religion to wear."

#SupremeCourt #Hijab

Sr Adv Jayna Kothari: ERP is not required to be showed under Article 15. Merely that one will be disadvantaged is enough.

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Sr Adv Jayna Kothari: Whether or not is an ERP, we need not go into that threshold at all.

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Sr Adv Jayna Kothari refers to a case from Kenya.

"The fact that MNW keeps rastas as a manifestation of her religious beliefs should not have been the basis for excluding her from school", sr counsel reads.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Contd. "The school’s decision to force her to shave the hair effectively punished the practice of her religion, degraded and devalued her and the other followers of that religion in the eyes of other members of society."

#SupremeCourt #Hijab #HijabBan #HijabHearing

"The ultimate result was to force her to choose between adhering to her religious edicts thereby foregoing education, or sacrifice an important aspect of her religion in order to pursue education."

Sr Adv Jayna Kothari: Here it is both sex and religion. Because it is only Muslim girls.

Refers to a Supreme Court decision where intersectional discrimination was recognised.

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Sr Adv Jayna Kothari: All along we have recognised 15(1) on one ground.

But, this is the first time we have recognised more than one ground.

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Sr Adv Jayna Kothari reads the judgment in Patan Jamal Vali vs The State Of Andhra Pradesh.

"Laws tend to focus on a singular identity due to the apparent clarity a monistic identity provides in legal analysis where an individual claiming differential treatment or...

Sr Adv Kothari continues: "..violence can argue that “but for” that identity, they would have been treated in the same way as a comparator."

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Sr Adv Jayna Kothari reads judgment further.

indiankanoon.org/doc/138189653/

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Sr Adv Jayna Kothari reads, "This fails to take into account the intersectional nature of sex discrimination, which cannot be said to operate in isolation of other identities, especially from the socio-political and economic context."

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Sr Adv Jayna Kothari: This is not MERELY a religious based discrimination. It is also sex.

Finally, the last document is the Convention on the Elimination of All Forms of Discrimination against Women.

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Sr Adv Jayna Kothari: There are decisions on International Law being followed. In public institutions, can the state take actions which discriminate against women?

Senior counsel concludes arguments.

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Court tells counsel to conclude today.

Senior Advocate Dushyant Dave: My Lords should have referred this case to a larger bench. Should not have heard like this. Now, please don't restrain us in time for arguing.

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Court now hears Senior Advocate AM Dar.

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Sr Adv AM Dar: Unless Your Lordships are giving the religious PoV, it will be very difficult.

1400 years before the Quran was revealed.. whatever is the commandment of Allah, these Surahs are mandatory.

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Justice Dhulia: Right, farz?

Sr Adv AM Dar: These cannot be amended. Three Surahs are incorporated in the Quran.

Justice Gupta asks for written submissions: It will facilitate your arguments.

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Justice Gupta: Take 15-20 minutes.

Sr Adv AM Dar: Respectfully, I will need more. I will enlighten Your Lordships on Quran.

Justice Gupta: One way is to interpret Quran. But we cannot do it. Courts are not equipped to interpret.

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Sr Adv AM Dar: But the way the Karnataka High Court has interpreted... I am just correcting it.

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Sr Adv AM Dar narrates the Quran.

Justice Gupta: We are not understanding! We don't know Arabic.

Dar: Translation is there. I will read it.

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Sr Adv AM Dar: The importance of the Surah is that if it included in the Quran, it is mandatory. Not directory, like the Karnataka High Court has said.

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Justice Gupta: This was read before. Please that's not proper.

Sr Adv AM Dar: Why is there illegality? This is mandatory, not directory. They have relied..

Justice Gupta: High Court has said nothing in the Quran is mandatory.

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Sr Adv AM Dar: This is wrongly done! I don't know why it has been taken as recommendary.

Justice Dhulia: The Ld Judges have relied on Ahmad Ali commentary because Supreme Court has also relied on it.

Sr Adv Dar: But that is completely wrong!

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Sr Adv AM Dar: In all Surahs, it is said that Allah is great & merciful. But it is not that if you don't wear Hijab he will forgive you.
There is no mention of this. This is the first illegality. That author Ahmad Ali is totally wrong

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Justice Gupta: Please don't take us through all verses of Quran.

Sr Adv AM Dar: I am just showing directory and mandatory. Quran is mandate. It is the commandment of Allah.

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Sr Adv AM Dar: We Muslims have to follow the Surahs. On the day of judgment, all will be accounted for.

As far as Hijab is concerned.. we are living in a great nation where there are constitutional protections.

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Sr Adv AM Dar: Faith is protected in the Preamble!

Belief, faith and religion is protected under the Preamble.

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Justice Dhulia: You said you will only limit yourself to verses.

Sr Adv AM Dar: I will just read the Preamble & come to that.

Justice Gupta: It has been read by many advocates.

Dar: Fraternity has been read. I am on beleif.

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Sr Adv AM Dar: I was a student in Kashmir in one of the schools where there was a Khadi uniform with shorts and shirt.

Sardar students were allowed to wear turban, or patka in the uniform's colour.

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Sr Adv AM Dar: I am not saying we will go with Burqa! Absolutely not. This is such a great nation, even at airports places of worship are earmarked. We only want to put a scarf.

Justice Gupta: Please confine yourself.

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Sr Adv AM Dar: If the girls are accomodated.. they should not be discriminated. There is no public order.

Court: You've made your point. Not more than 3-4 minutes.

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Sr Adv AM Dar: The judgment says there is no punishment if you don't adhere. There is a punishment.

Justice Dhulia: So, the Karnataka High Court was wrong in saying that because there is no punishment, it is not mandatory?

Yes: Dar

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv AM Dar reads Quran.

Justice Gupta: Please confine..

Dar: The Quran is quoted in the impugned judgment, My Lord. 70 pages.

Justice Gupta: You have said there are three relevant Surahs. Let us confine to that.

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Sr Adv AM Dar: I am on the punishment.

Justice Gupta: Yes, you have said at end of life there is punishment. We have understood that point.

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Sr Adv AM Dar: Since constitutional protection is there.. and it's not prejudicial to anyone else. It is only some sort of oblique considerations.

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Senior Advocate AM Dar concludes his arguments.

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Senior Advocate Meenakshi Arora begins submissions: I will be very concise. I have two points:

1) Convention on Rights of Child.

Justice Gupta: That has been referred to.

Arora: I think that was CEDAW. this was completely ratified.

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Justice Dhulia: So, child is till age of 18?

Sr Adv Arora: Yes. This convention protects children to practice their religion, and against discrimination.

(Reads the convention)

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Sr Adv Arora reads, "Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health or morals, or the fundamental rights and freedoms of others."

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Sr Adv Arora continues: "States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child's human dignity and in conformity with the present Convention."

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Sr Adv Arora: What we are looking is a religious tolerance within the school.

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Sr Adv Arora continues to read the Convention on the Rights of the Child.

ohchr.org/en/instruments…

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Sr Adv Arora: United Nations has been seeing how countries have been adhering to this.

How has the UN has taken a view of such facets? There is a Norway case. Where they have a particular religion.

The Human Right Committee found a violation of the convention

#SupremeCourt

Sr Adv Arora: Norway being a Christian state, chose to teach their children only Christian values. But the committee said no, you should allow children to follow their own conviction.

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Sr Adv Arora: The entire aim of education is to bring about religious tolerance. If we start banning one aspect of religious expression which is not against public order, morality...

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Sr Adv Arora: .. we are not reaching our children religious tolerance.

May I take a few more minutes?

Justice Gupta: What can we do? We can't help it.

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Sr Adv Arora: The UN committee finds that banning of headscarf is in violation of the convention which we have ratified.

Justice Gupta: Ok, show us that.

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Sr Adv Arora: It says that dress code must encourage participation of students rather than having them stop coming to school.

They're talking about France here. We are a secular country.

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Justice Dhulia: Headscarf is banned in France.

Sr Adv Arora: Because France follows a very strict secular policy where no religious display is allowed.

Justice Dhulia: & we don't do that.

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Sr Adv Arora: Does the Hijab in any manner offend public order, morality?

On the contrary, you exclude children from school- you marginalise them. We don't teach children religious tolerance.

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Sr Adv Arora: The State government has no power to make a government order against a central legislation.

While the State has issued the GO, the KVs allow Hijab. I just say, if it is conformity with the statute, i will say the GO is in bad

#SupremeCourt #Hijab #HijabBan

Sr Adv Arora on Essential Religious Practice- Islam is the second largest religion practiced across the world.

The purpose of this statistic is this- across countries most people practicing Islam recognise wearing Hijab as a cultural practice.

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Sr Adv Arora: When a large no. of courts across the world, and huge segment of population recognises Hijab as essential- who are we to reinvent the wheel?

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Justice Dhulia: ERP was the petitioner's arguments.

Justice Gupta: You raise an argument, then say court has exceeded its jurisdiction.

Sr Adv Arora: Sometimes the matters go.. this is not to put down the High Court.

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Sr Adv Arora: Matters take a particular trend. I am requesting this court- to go behind ERP, is in my submission, is not necessary.

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Sr Adv Arora: I am referring to other jurisdictions because just as us Hindus are majorities, we are minorities elsewhere and we try to carry our culture.

Kenya decided on nose ring, a wearing of "Kara" in Scotland - these are on religious accommodation.

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Sr Adv Arora refers to the Watkins-Singh case from Scotland for the right to wear a "Kara".

The judgment was earlier referred to by Senior Advocate Jayna Kothari.

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Sr Adv Arora: You don't want to make cultural identity extinct.

When you want to discriminate - look at reasons very carefully. Does it meet the test?

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Sr Adv Arora: Please very closely look at the justification. Keep in mind that we have a legislation.

I am done. Can I just give you the paragraphs in the Kenyan judgment. I am really grateful for your accommodation.

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Senior Advocate Meenakshi Arora concludes.

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Advocate Shoeb Alam: I am responding to the question that why was essential religious practice argued in the High Court? For that we will look at the government order.

It refers to three judgments.

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Adv Alam: These judgments have references to essential religious practices. So, there was a bona fide need for us to argue.

Court: But no one stopped you from arguing there, what you are arguing now.

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Adv Alam shows High Court order: There were a bundle of arguments taken. They were not limited to ERP, they were abundant.

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Adv Alam: There are some judgments I will be relying on.

There are three or four Constitutional principles.

There was a question by Justice Gupta to show the right to wear Hijab in school.

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Adv Alam: I discovered, in Puttuswamy there is a very nice line on that. It says, privacy actually attaches to your person- not to a place. It will travel with you.

Justice Gupta had pointed out that even a prisoner has rights in person.

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Adv Alam: The concept is of shrinkage of certain fundamental rights. It is not one of surrender, but there can be a reasonable restriction.

The extent to which an individual seeks to cover his or her body or whichever part...

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Adv Alam: .. to feel secure from public gaze, is a matter of choice.

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Adv Alam: There is no hierarchical difference between an enumerated and unenumerated fundamental right.

The High Court was wrong in refusing to apply the test of proportionality.

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Adv Alam: No one has a say in choosing what extent a person needs to cover to feel secure from public gaze.

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Adv Alam reads judgment in Justice KS Puttaswamy v Union Of India: "Privacy protects heterogeneity and recognises the plurality and diversity of our culture."

indiankanoon.org/doc/127517806/

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"While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place," Alam continues.

Adv Alam: The other two concepts are- under the Constitutional scheme, there is no scope to barter a fundamental right.

The impact of the government order needs ot be seen, not the intention or purpose.

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Adv Alam refers to In Re: The Kerala Education Bill case.

indiankanoon.org/doc/161666/

The court said the State cannot come forward and say I will give you money if you give up your Article 30 right.

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Adv Alam reads, "The State legislatures cannot, it is clear, disregard or override those provisions merely by employing indirect methods of achieving exactly the same result. Even the legislature cannot do indirectly what it certainly cannot do directly."

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Adv Alam continues, "According to the decisions of this Court already referred to it is the real effect to which regard is to be had in determining the constitutional validity of any measure."

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Adv Alam now refers to Olga Tellis & Ors vs Bombay Municipal Corporation.

"But, the high purpose which the Constitution seeks to achieve by conferment of fundamental rights is not only to benefit individuals but to secure the larger interests of the community."

Court: What is the barter you are suggesting?

Adv Alam: On one hand, i have my right to education, a secular education.

On the other hand, I have my right to privacy, culture etc. under Article 21.

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Adv Alam: The impact of the government order is - I will give you education, you give me your right to privacy.

The state cannot ask me to surrender my right to privacy.

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Adv Alam refers to the concept of an unconstitutional condition.

Refers to the case of The Ahmedabad St. Xaviers College ... vs State Of Gujarat.

indiankanoon.org/doc/703393/

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Reads: "The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is un- reasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution."

#Hijab

Adv Alam continues reading, "The Argument is that a benefit-burden package viz., the privilege of affiliation with all the conditions, is being offered without discrimination; that the, State or university does not withhold the privilege from any persons or entities..."

#Hijab

Adv Alam reads, "It is contradictory to speak of a constitutional right and yet to discriminate against a person who exercises that right."

indiankanoon.org/doc/703393/

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Adv Alam: The State has an affirmative obligation and duty to facilitate education.

Refers to Farzana Batool v Union of India.

main.sci.gov.in/supremecourt/2…

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Read, "The State has an affirmative obligation to facilitate access to education, at all levels..."

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Continues, "This obligation assumes far greater importance for students whose background (by virtue of such characteristics as caste, class, gender, religion, disability and geographical region) imposes formidable obstacles on their path to accessing quality education."

#Hijab

Adv Alam: Justice Dhulia asked yesterday for data. These are reports from the government of India. The Ministry of Minority Affairs published reports.

Reads from 2019 reports.

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Adv Alam shows statistics of Muslim girls in schools.

Justice Gupta: These are practically the same.. it's not a shocking difference in percentage.

Justice Dhulia: The difference comes in Higher Secondary.

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Adv Alam: They have the lowest attendance in higher secondary.

In Muslims, 19.8% are never enrolled in school. Closest after that is Christians is 12.7%.

Currently attending is also lowest in Muslims.

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Adv Alam: 24.8% Muslim girls have never enrolled.

Justice Dhulia: We could have appreciated if you could have shown us the compatitive drop - out rate.

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Adv Alam: This is, at best, an executive order. Any executive order under Article 162 does not constitute law for restrictions under Article 19 and 21.

Justice Gupta: Show us that.

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Adv Alam refers to judgment in Kesavananda Bharati v. State of Kerala.

indiankanoon.org/doc/257876/

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Advocate Shoeb Alam concludes.

Justice Gupta: We will not hear only Mr Gonsalves and Mr Dave. No one else.

Court breaks for lunch. Will continue after lunch break.

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Court presides.

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Senior Advocate Colin Gonsalves begins submissions.

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Sr Adv Gonsalves: The most important issue is this - whether the practice of wearing Hijab is essential or not.

High court said no. That is what I will address you on.

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Sr Adv Gonsalves: The three international judgments read out to Your Lordships did not deal with the essentiality of the practice.

Justice Gupta: Yeah, because essential religious practice has been laid down by this court.

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Sr Adv Gonsalves: The High Court was of the opinion that you have no right if you don't establish essentiality.

Refers to the three international judgments cited by other counsel.

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Sr Adv Gonsalves asks court to refer to the High Court judgment.

Justice Dhulia: You have not quoted the entire paragraph. This is not making any sense.

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Sr Adv Gonsalves: The court is saying that if you can't prove essential, there's no other right under Article 25. Now, when we showed the international cases, that was shut out.

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Sr Adv Gonsalves: How? You will find hardly any analyses of these three leading judgments in the world- South Africa, Canada and Kenya.

Justice Dhulia: Does this mean that if you can't establish ERP, you can't touch on any other constitutional right?

Gonsalves: Yes!

#Hijab

Sr Adv Gonsalves refers to High Court's judgement: "Courts have to adjudge the causes brought before them essentially in accordance with native law."

Justice Gupta: In India there is a principle of essential religious practice.

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Justice Gupta: Therefore, foreign judgments may not be applicable because no EPR.

Gonsalves: But that is why it will be applicable because it is a simple religious practice.

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Gonsalves: So the core question before Your Lordships is whether a practice which is not essential will be covered by Article 25.

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Sr Adv Gonsalves refers to Justice KS Puttaswamy v Union Of India to say that foreign judgment have to be relied on.

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Sr Adv Gonsalves: The Kenyan judgment according to me is the best precedent.

It is squarely on all fours with our case.

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Sr Adv Gonsalves: We don't need pleadings to show that Hijab is a prectice- millions have been wearing it for time immemorial.

Justice Gupta: court has to decide of case set up, the High Court has gone into essential religious practice.

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Sr Adv Gonsalves: I will show ten short points on how the judgment is on the perception of the majority.

Where the minority PoV has been seen wrongly. It's basically a majoritarian judgment.

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Sr Adv Gonsalves It does not conform to the kind of constitutional independence that a judgment ought to have.

Startling & hurtful paragraphs.

Justice Gupta: We've seen your written submissions. Point well taken.

Gonsalves: No, I will go rapid fire.

#Hijab

Sr Adv Gonsalves reads parts of the Karnataka High Court judgment that he says are hurtful.

Justice Dhulia: You cannot cherry pick like this. Read the whole thing.

Refrence is made to a statement by Dr Ambedkar in his book 'Pakistan or the Partition of India'

Gonsalves: Ambedkar's statement, a pillar as he may have been, should not be repeated in India.

Sr Adv Gonsalves: The judgment should be set aside & sent back.

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Sr Adv Gonsalves reads from the judgment, "Such ‘qualified spaces’ by their
very nature repel the assertion of individual rights to the
detriment of their general discipline & decorum."

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Sr Adv Gonsalves: He makes any analogy of prison, that is not right.

He says don't assert your individual fundamental rights because you are now in a "qualified public space". I do not find this in Indian jurisprudence.

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Justice Dhulia: There is no reference here for these phrases?

Sr Adv Gonsalves: A muslim lawyer coming to court in a Hijab can then legitimately be told to take off their Hijab because this is a "qualified public space".

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Sr Adv Gonsalves: & we have had complaints for this. This is very dangerous. Any space where you don't have fundamental rights is very dangerous.

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Sr Adv Gonsalves: This is not the matter of just the students. You're laying down the law for the entire state.

Justice Dhulia: There is scope to say that freedom of conscience and freedom of religion are mutually exclusive.

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Sr Adv Gonsalves draws comparison between kirpan, turban and hijab: The constitution is a living organism. You change with times. What was previous incomprehensible are today to be accepted.

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Sr Adv Gonsalves: The argument is.. if a turban is allowed in school, why not the Hijab? What's the difference? Apart from the fact that it got Constitutional protection 75 years ago.

You'll never tell a Sikh boy to take off his turban.

#Hijab

Sr Adv Gonsalves: Constitutional morality is the ability to see an issue through the eyes of a minority. A person from the majority may not understand quickly.

Our people are yet to learn.

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Sr Adv Gonsalves refers to the case of Aruna Roy vs Union of India: My submission is, what better way for children in India to learn about different religions than from their fellow students?

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Sr Adv Gonsalves: Some in a turban, some in a Hijab.. what better way for students to learn?

Go for Diwali, Christmas, Eid.

Aruna Roy says it's of the most importance.

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Sr Adv Gonsalves: "Value-based education would help the nation fight against all kinds of fanaticism, ill will, violence, fatalism, dishonesty, avarice, corruption, exploitation and drug abuse"

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Sr Adv Gonsalves: This arose in a particular kind of environment in Karnataka. I cannot tell you, it is not proper.

We'll leave it.

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Sr Adv Gonsalves: When this happens, students learn that there is something wrong with Islam. Why is the police coming? Why is the principal coming?

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Sr Adv Gonsalves: Parts of the judgment are deeply offensive to those who follow Islam, and it's contrary to at least three landmark judgments of this court.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Gonsalves: It nullifies protection in Article 25.

It almost militarises schools. It introduces all kinds of new formulations, likely to cause confusion.

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Sr Adv Gonsalves: The wrong equation of wearing Hijab with a law and order situation, the shocking observations of emancipation.

Senior Advocate Colin Gonsalves concludes.

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Senior Advocate Kapil Sibal makes submissions: I will not argue on merits. This issue should be referred to the Constitution Bench.

Justice Gupta: That has been argued.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Senior Advocate Kapil Sibal: We all accept that in the context of diversity of our country, Hijab can be worn in public. Nobody can dispute.

The question is, the wearing of the Hijab is the expression of who you are, where you are from

#SupremeCourt #Hijab #HijabBan

Senior Advocate Kapil Sibal: What you wear is an expression of the self.

Dress maketh man.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Sibal: The question that has to be decided first- is wearing a dress an expression of self and have a link to bodily autonomy.

I can wear a mini skirt.. I can wear whatever I want.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Sibal: Dress is at the heart of privacy, 19(1)(a)- not speech, expression.

If that right is available to me in a public place, is my fundamental right extinguished in a public place? The constitution doesn't say so.

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Sr Adv Sibal: You'll have to find the answer in 19.

If wearing a dress is part of expression, you'll have to find limit under 19 which is public order, morality, decency. That's the real constitutional question.

The limits of 19 2

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Sr Adv Sibal: Assume ther was no government order, and a school said we won't let you wear. Would it be allowed? No.

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Sr Adv Sibal: I know my colleague Kamat argued it, but in this context that I will.

Justice Dhulia: The phrase used is qualified public space.

Sibal: it's not in 19.

Justice Dhulia: so where do you get that concept?

Sibal: Nowhere!

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Sr Adv Sibal: The Hijab is now a part of my persona, a part of me! You can't destroy me.

It's a part of my cultural tradition. Does my right stop at the college gate?

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Sibal: For example, there are black children in America. Their hair are a certain kind so they wear certain braids. Can a school in America say no no you can't wear like this?

You can't.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Sibal: If i wear a mini skirt to school, they can refuse since it's under 19. But we are going beyond 19.

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Sr Adv Sibal: No child wearing the Hijab has said that I will not wear the school dress.

What am I wearing? It's beyond the uniform. Its part of my culture. What's the point of our constitution talking about protecting expression?

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Sr Adv Sibal: I am entitled to say that I belong to a particular culture, both as an adult and a student.

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Sr Adv Sibal: The law cannot prohibit expression unless it goes against public order or morality and decency

There has been no untoward incident in Karnataka that can give rise to a situation for the State to intervene contrary to the constitution

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Sr Adv Sibal: What was the compelling need to pass this order?

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Sr Adv Sibal: If I wear a Hijab- it is detrimental to general decorum and discipline how?

Justice Gupta: Mr Gonsalves has covered this.

Sibal: Oh, went much further than this. I am putting it mildly. I will not go the Gonsalves way

Justice Gupta laughs.

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Sr Adv Sibal: Who are they to object? They have no right to object. And when did they object? They tried to create the issue.

The idea was to create an environment in which the State takes action. A person on the road can't say don't wear Hijab.

#SupremeCourt #Hijab #HijabBan

Sr Adv Sibal: A student does not forego her fundamental rights the moment she steps into the school gate.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Sibal is taking the court through the Bijoe Eemmanuel v State of Kerala case.

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Sr Adv Sibal: the consequence of depriving girls is depriving them of their fundamental rights to education, dignity and privacy.

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Sr Adv Sibal refers to a Deccan Herald report that was based on

Justice Gupta: The information sought is quite broad. It is only dropout and transfer.

Sr Adv Sibal: Naturally, that's what.

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Sr Adv Sibal: The Deccan Herald report was based on an RTI application. 16% muslim girl students have collected their transfer certificates.

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Sr Adv Sibal: It is in this context that the matter should be referred to a a constitution bench. See the national impact of such an order.

I don't want to make a political argument but the national impact can be great.

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Senior Advocate Kapil Sibal concludes his arguments.

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Advocate Prashant Bhushan begins arguments: I am not arguing essential religious practice. I am on 19(1)(a), 14 and 25.

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Adv Prashant Bhushan refers to NALSA v Union of India to say that the freedom of expression includes right to dress.

indiankanoon.org/doc/193543132/

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: Strictly speaking that school or college uniform cannot be imposed.

A private club can have a dress code for example golf club. But a public educational institution cannot.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: It would be clearly violative of Article 19 1 a.

Court: So, they cannot even have a uniform?

Bhushan: Strictly, yes.

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Adv Prashant Bhushan: Banning of Hijab, even if the law gives them a right to impose a dress code, that law to be reasonable and it has to be justified in one of the six ground in 19 2. If the right to dress is covered under..

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: ..freedom of expression, any restriction has to be be by law and reasonable.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: In Puttuswamy, they have said privacy is a facet of 19 1 a and 21.

Nobody would like to be told by the state what they should eat or dress.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: In any case this is discriminatory because if you proscribe the Hijab. If you say, there is no rationale for it at all- then it's arbitrary. If the rationale you seek to give is- it's a mark of religious identity

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: ... Because we are secular institution we do not want any mark. But it is discriminatory because you have not banned any other mark like the pagdi, the tilak or the cross.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: The you have to uniformly proscribe all symbols of religious identity.

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Adv Prashant Bhushan: Last is that it is violative of Article 25.

I don't have to say it's essential, it's enough to say that it's something people from a particular religion like to wear to express their religious identity.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: Over the years it has acquired a religious identity, and that is protected under Article 25.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: If I bona fide believe that I can express my religious identity through the Hijab, then it cannot be proscribed unless on public order morality and decency.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Prashant Bhushan: Whether the religion prescribes or whether I believe that it does. It's a right under 25.

Bhushan concludes.

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Counsel argues on right to education, refers to Articles 45 and 46.

Justice Dhulia: These are directive principles.

Counsel: The content of right to education has to be culled from these directive principles. Refers to judgment in the case of Unni Krishnan v State of AP.

Counsel reads, "Bandhua Mukti March this court held that the right to life guaranteed by Article 21 does take in 'educational facilities"

This right has been interdicted by the government order. Can a fundamental right of a girl from a minority community be proscribed like this?

Counsel refers to the Sachar Committee Report.

minorityaffairs.gov.in/en/document/sa…

#SupremeCourt #Hijab #HijabBan #HijabHearing

Counsel: What should be done in this situation? When you are directly stopping a fundamental right from being exercised.. the state has gone against the constitution.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Counsel refers to the principle of reasonable accomodation.

Court: This has been argued. I think you have concluded your arguments.

Counsel: No, the GO is not facially neutral.

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Counsel concludes arguments.

Rishad Chowdhury says he wishes submit the Shia perspective: There has been the question that how will judges without religious understanding decide?

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Advocate Rishad Chowdhury: There are many commonalities between Shia and Sunni. But there are a few differences.

In Shia, when there is a difference there are religious scholars who have expertise. Like the pope.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Chowdhury: While the source is the same, a lay Shia person can speak to religious scholars. Their scholarship evolves over decades.

Historically, this is in Iran and Iraq.

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Adv Chowdhury: The only reason to say the Hijab is essential is that the Shia perspective has not been considered.

We have cited decisions by leading Shia clerics. When a Shia is in doubt, you are required to consult the scholars.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Justice Gupta: Therefore, without books there's a living interpreter.

Adv Chowdhury concludes.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Advocate Thulasi K Raj submits: Can a state action be motivated by prejudice? It is that Hijab is a symbol of patriarchy, motivated towards the subordination of women. This assumption is not correct.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Raj: Merely because a woman wears a Hijab does not mean that she is subordinate or subservient to patriarchy. The state cannot impose a prohibition on Hijab since this assumption is itself incorrect.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Adv Raj: One conceptual clarity on indirect discrimination - the State should not be able to discriminate on the basis of a facially neutral criteria.

Advocate Thulasi K Raj concludes.

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A counsel seeks to mention.

Justice Gupta: Absolutely not. We have had enough. Only Mr Dave will be allowed to submit.

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Court: How much time will you take Mr Dave?

Sr Adv Dave: I'm not sure. Anywhere around four hours.

Court: We'll have it on Monday at 2 pm.

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Court requests Sr Adv Dave to be concise.

Sr Adv Dave: I cannot do that!

Court rises. Hearing to continue on Monday.

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