Thread by @barandbench

Day 7: [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.

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Senior Advocate Dushyant Dave: I will show constitution assembly debates for Article 25.

I will show what Sardar Patel, and Dr Ambedkar had feared. This was exactly what they feared. They forewarned us.

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Sr Adv Dave: I will also show what Sardar Patel said as Chairman of Minority community. You will be surprised, their fears and turning to reality.

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Dave: Your Lordships are not just custodians of fundamental rights- for us, citizens Your Lordships can alone stand between parliamentary excesses and citizens.

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Sr Adv Dave: These acts show that there is a pattern to marginalise the minority community. You want unity.. today you have to ask permission from a magistrate if a Muslim and Hindu want to marry.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Dave: Two of the senior most members of the BJP, Muslims, are married to Hindu women.

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Sr Adv Dave: You will have to consider the principle of malice in law. Your are passing this resolution for uniform, but the intent is something else.

We are telling the minority community, you will do what we tell you.

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Sr Adv Dave: This is riti-riwaaz. I have never seen my mother without her head covered. This is nothing but malice in law.

I will show how Justice HR Khanna speaks about malice.

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Sr Adv Dave: Powerful western economies have taken a view where they have permitted Hijab. American army has allowed turban.

That's the respect they show to religion. Constitution framers didn't speak of turban, only kirpaan.

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Dave: I genuinely beg Your Lordships to take a broad, liberal view. Our identity is to wear Hijab.

It was beautifully brought out by Mr Gonsalves. We do not want to segregate, like America!

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Dave: I want to start with what Sardar Vallabhbhai Patel warned us.

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Sr Adv Dave quotes Sardar Vallabhbhai Patel, We on our part, taking this responsibility of laying the foundations of a free India which shall be and should be our endeavour both of the majority-- largely of the majority--.."

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Sr Adv Dave continues .."and also of the minority community, have to rise to the situation that is demanded from all of us, and create and atmosphere in which the sooner these classifications disappear the better."

#SupremeCourt #Hijab #HijabBan #HijabHearing

Sr Adv Dave reading, "So also it is far us who happen to be in a majority to think about what the minorities feel, and how we in their position would feel if we were treated in the manner in which they are treated."

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Sr Adv Dave: People these days want to forget about Gandhi, and speak of Sardar Patel.

Sardar Patel was but a very very secular man.

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Sr Adv Dave: Kindly turn to what Ambedkar said.

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Sr Adv Dave: The only religion that matters here is the Constitution. Without the Constitution we'll be left nowhere.

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Sr Adv Dave quotes, "One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State."

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Sr Adv Dave: Look at this warning.

There are more than 10K suicide bombings in Islamic countries.

This country has only faced one suicide bombing in Pulwama, this shows the minority communities faith in us.

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Sr Adv Dave: Religion is a very difficult frame of my mind to guide in masses.

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Sr Adv Dave shows Article 25 debates.

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Sr Adv Dave quotes HV Kamath, "When I say that a State should not identify itself with any particular religion, I do not mean to say that a State should be anti-religious or irreligious...

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Continues, "..We have certainly declared that India would bea secular State. But to my mind a secular state is neither a God-less State nor an irreligious nor an anti-religious State."

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Sr Adv Dave quotes Pandit Lakshmi Kant Maitra, "In other words in the affairs of the State the professing of any particular religion will not be taken into considerationat all. This I consider to be the essence of a secular state."

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Sr Adv Dave quotes Krishnaswami Bharathi, "It is very necessary that we should show tolerance. That is the spirit of all religions. To say that some religious people should not do propaganda or propagate their views is to show intolerance on our part."

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Justice Dhulia: But I think Seervai in his second volume wrote why propagate was included...as some faith like Christianity etc have to preach ..

Dave: yes there is a modern Krishna group too who preaches Hinduism beautifully. Every one has the right to propagate #Hijab

Dave: for some one who studied for 14 years in a Christian institution no one forced me ever to get converted to Christianity. My children also went to the same. Who goes to the most mosquito infested areas of this country, it is Christian missionaries #SupremeCourt #Hijab

Dave:. Today we feel if someone falls in love and marries, we think it is an attempt to convert. I don't know where are we heading... #SupremeCourt #SupremeCourtofIndia #Hijab

Justice Gupta: To what extent constituent assembly debates are imp to interpret this provision. We have to look at the language of the law

Dave: But the debates show the will of the ones who drafted the constitution

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Justice Dhulia: in the NJAC case it has been discussed how constituent assembly debates help...

Justice Gupta: even the Kalpana Mehta case discusses the debates

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Justice Gupta: to what extent are constituent assembly debates are relevant to interpret the current day Constitution

Dave: Constitution is not a changing document. It is they who drafted it. Preamble, basic structure are part of constitution #SupremeCourt #SupremeCourtofIndia

Dave: It can aid to fullest extent

Justice Dhulia: please give us the precedents on this Constituent assembly debates point

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Dave: Constitution is a contract between every citizen and the document. As and when a person is born, the constitution gets linked to the person. This is why framers used such beautiful words like "liberty of faith" and "liberty of religion,"
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Dave: As one cannot quarrel with right of Sikhs to wear Turban you cannot quarrel with right of Muslim women to wear hijab. They have been wearing it for centuries. Orthodox Jews in Jerusalem are the most orthodox of everyone but that is how they are... #SupremeCourt

Dave: somebody wants to wear a kada, a cross or hijab. This is the beauty of our country. Does wearing of hijab threatens unity and integrity of India ?

Justice Dhulia: who is saying that ? Even HC judgment does not say this

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Justice Dhulia: it can be argued by other side is that Article 19 gives some rights and it can be curtailed by Article 19(2) which is by law only

Justice Dhulia: Law here means rules, bye laws etc

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Dave: Yes it is but what I am arguing is deeming fiction. When circular violates the Article 19(1) , 25 and then it violates 14

Justice Gupta: Article 29 as well

Dave: yes, article 29 now includes right to dignity after the Kharak Singh case #Hijab

Dave: Whenever I am free I read the Constituent Assembly debates..i have read it a dozen of times. Its beautiful intellectual piece of document. Article 25 was taken from Irish Constitution. Please see the Irish Constitution #Hijab

Dave: Theory of essential religious pratice is irrelevant and this was held by the Constitution bench of this case. The word practice does not find place in Article 25 and you cannot add words to the constitution which is not there.

#Hijab

Justice Gupta: What is religious practice under 25(2). Question before 9 judges bench is right of Muslim women to go to Dargah.

Justice Gupta: So what about the dress.. the word dress in Shirur Mutt is loosely explained. Then it was stated in another case how wearing a Dhoti has to be worn inside a temple

Dave: It has been held by the court that practice of the community is a religious practice.

Dave: this circular is an excess on part of the state. HC judgment is completely oblivious of the point. I don't think the HC judges have quite understood what Constitutional morality and constitutional ethos is #Hijab

Justice Dhulia: The problem the HC has set for itself is that what is ERP and then held that it is directory. Point is till where can fundamental rights can be exercised.. classroom?

#Hijab

Dave: it can be everywhere bedroom office everywhere. Bar council has an uniform for us.. but if I wear a cap can someone stop me? #Hijab

Dave: Our Prime Minister every Independence Day beautifully wears a head gear. This is to show diversity and how beautiful is this. #Hijab @narendramodi

Dave: Regarding golf course, now there is a rule that jeans is not allowed..

Justice Gupta: that's okay all these places has rules..

Dave: but it has to be seen can rights be curtailed in classroom. I say no

Justice Gupta: yes we are hearing this since 7 days

Justice Gupta: then we noticed that you were not there..

Dave: may be I was in the Golf course #SupremeCourt #Hijab

Dave: This circular (govt order) is an insidious attempt. It may be well meaning but not lawful #Hijab

Dave: in pursuance of Islam If i wear a hijab then it is a part of religious practice.

#Hijab #SupremeCourt

Dave: due weightage must be given to the South African Constitutional court, US Court and UK courts. Our courts have followed these judgments

Justice Dhulia: We are on Article 25(1) and not 25(2), are we?

Dave: if it is not essential for 25(2) how can it be for 25(1)

Dave: We all have seen from childhood that Muslim women wear hijab. We may like it or not like it. But how can we interfere with what they wear ?

Hearing concludes for the day

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