Thread by @barandbench

Day 10: [Hijab Ban hearing]

The Supreme Court is set to 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

A bench of Justices Hemant Gupta and Sudhanshu Dhulia concluded hearing the State and teacher's arguments yesterday. The appellants will put forth their rebuttals today.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan

Hearing begins.

#SupremeCourt #SupremeCourtofIndia #Hijab #HijabBan

Senior Advocate Dushyant Dave begins rejoinder submissions.

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Sr Adv Dave shows the circular: There is something very interesting.

Sr Adv Dave: The circular has no reference to Popular Front of India.. I regret to say the Solicitor raised that issue, but it's not relevant and because he raised it entire media picked it up.

#SupremeCourt #Hijab

Sr Adv Dave: Electronic media, print media- the headline is PFI. The Solicitor raised it.

Justice Gupta: He was giving a background.

Dave: But no one allowed me to raise that background. You cannot bring something outside the circular.

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Sr Adv: Learner Advocate General said that the guidelines which say uniform is not compulsory were unsubstantiated documents. But in the High Court they acknowledged it.

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Sr Adv Dave: The document is substantiated by their own submission before the High Court.

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Sr Adv Dave: It's not right for the SG and AG to tell the court that this is an unsubstantiated document.. government's own document government has disowned.

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Sr Adv Dave: I submit that it's not right for law officers to tell the court that it is unsubstantiated.. they can say it's not relevant.. same is with argument of PFI.. they've not been able to respond or answer..

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Justice Dhulia: There's an earlier circular of the same nature, legal standing that uniform is not mandatory?

Yes: Dave

Justice Dhulia: The subsequent one will supercede..

Justice Gupta: In what context was it issued?

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Sr Adv Dave: It was guidelines.

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Sr Adv Dave: This buttresses my argument that there was no cause to issue the Feb 22' guidelines. This one does not say earlier circular is superseded..

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Court asked the respondents their stand on this argument.

Sr Adv Dave: The present circular does not even refer to these guidelines.

Justice Dhulia: No, it does take care of that.. (reads the circular) In case where there is no uniform.. this question was out to SG.

#Hijab

ASG Nataraj: 1) The guidelines do not confer any right on anyone. Some circulars will not create any kind of right unless there is statutory backing.

2) The subsequent notifications are all referable to statutory provisions.

Justice Gupta: They are issued for general info.

Justice Gupta: You cannot then say guidelines are completely untenable.

Mr Dave, is your stand that before there was no uniform prescribed?

Sr Adv Dave: No, our case is that Hijab was not restricted.

#SupremeCourt #Hijab

Sr Adv Dave: Uniform was not compulsory.. people wore, people didn't wear.

Justice Gupta: The circular says uniform is illegal.. were students wearing uniform or not?

Justice Dhulia: The issue is not uniform.. it's whether Hijab was being permitted or not

#SupremeCourt #Hijab

Sr Adv Dave: How can he say legal effect? It's issued by executive.

Justice Dhulia: The source for both is Rule 11.

Dave: Yes.

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Sr Adv Dave: The whole argument that the essential religious practice has been brought in through a back door.

Justice Dhulia: The petitioner said this was the main plank.

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Sr Adv Dave: Those who are believers, for them it's essential. This who are not, for them it's not essential. It's that way for all religions.

Justice Dhulia: If we are commenting on the High Court's path, it's because you took them to that path.

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Justice Dhulia: Essential religious practice has been laid down by this court..

Sr Adv Dave: Some of these petitions were filed before the GO was issued. The state's argument on essentiality is completely..

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Sr Adv Dave: Your Lordships has always said that you are a court which is really a court which acts as a protector of rights of citizens. Series of judgments..

Senior Advocate Dushyant Dave concludes.

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Senior Advocate Salman Khurshid: The judgment in sacrifice of animals was referred. There is nothing in the Quran.

The issue is in addition to ERP is of conscience, culture, identity and privacy.

#SupremeCourt #Hijab

Sr Adv Kurshid: France & Turkey was mentioned. In France- you can't even show a cross.. anything that is an expression of religious beliefs can't be exhibited.

In Mexico, for a long time, the President for a long time could not even go to the Church.

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Sr Adv Kurshid: The judgment of Shayara Bano was mentioned - there is one judgment that clearly says that Quran does not provide for Triple Talaq.

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Justice Gupta: Why was it argued that Triple Talaq was part of Quran?

Why are people still saying that the judgment is wrong?

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Sr Adv Khurshid: There's also a mention on the Ayodhya judgment. There the issue of essential practice was praying in a mosque. But the court said that a mosque is not an essential practice. Quran doesn't say you must pray in a mosque.

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Sr Adv Khurshid: The court ultimately has a right to delve into essential religious practices test to balance the rights under Section 25. What competing right there are etc.

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Sr Adv Khurshid: There is this issue of Article 51 A. We've already said that 51 A provides for composite culture. In that sense, imposing a duty that you just become unitary and not respect diversity.. 51 A does not provide that.

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Sr Adv Khurshid refers to judgment of KS Puttaswamy v Union of India.

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Sr Adv Khurshid: The issue here will be I use my behavioural privacy right to wear something if that wearing creates a violation of a competing right, then it would have to balanced. But if it does not, then this exercise will have to be permitted.

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Sr Adv Khurshid: The choice of appearance and apparel need not necessarily flow from Article 25, but also the judgment of privacy.

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Sr Adv Khurshid: There has to be high scrutiny of state interest..

Sr Adv Salman Khurshid concludes.

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Senior Advocate Huzefa Ahmadi: The argument related to PFI etc is not before the High Court, circular - nothing. They've also forfeited the right to file a counter. They can't rely on fresh material orally. An attempt was made to file something in a sealed cover.

#Hijab

Justice Gupta: It's not that they volunteered it. I asked them.

Sr Adv Ahmadi: They consciously said we'll not file a counter.. now there's an attempt to bring facts. There was also nothing in the circular.

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Sr Adv Ahmadi: Contention that on account of lady students wearing a Hijab, others got provoked and started wearing religious symbols- in their entire contentions they've not been able to point out which fundamental right of other students was infringed.

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Sr Adv Ahmadi: It is only when someone else's fundamental right is deprived can you justify such an administrative order or action.

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Sr Adv Ahmadi: I can understand if the circular said any kind of religious symbol is not permitted, it only refers to Hijab.

Justice Gupta: No, it doesn't say that.

#SupremeCourt #Hijab

Sr Adv Ahmadi: Just before the GO it is there. The circular has to be read as a whole. It doesn't target anything else.

#SupremeCourt #Hijab

Sr Adv Ahmadi: The target is only to a head-scarf and it doesn't take much enquiry to know which community wears headscarf.

Suppose you were to come out with a circular saying you cannot wear a turban, can you say no this does not target Sikhs?

#SupremeCourt #Hijab

Sr Adv Ahmadi: The circular's purport has to be read as a whole and it's effect has to be seen.

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Sr Adv Ahmadi: Even the High Court says that even the reasons in the circular do not appear to have been justified.

The AG also said only look at circular, not beyond. Then even HC says basis is not supported.

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Sr Adv Ahmadi: The doctrine of pith and substance is a legislative exercise to determine whether a particular law is beyond legislative competence or not.

You can't say I will apply the doctrine to encroach on fundamental rights.

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Sr Adv Ahmadi on dominant purpose: Both these concepts have no application to fundamental rights, they are to adjudge legislative competence. In fundamental rights even an incidental encroachment cannot be allowed.

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Sr Adv Ahmadi: Let's logically extend this doctrine. Tomorrow, it can be said a banking legislation will have a provision for arbitrary arrest or preventive detention.

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Sr Adv Ahmadi: Suppose my friend is right on this doctrine of incidental approach, see the consequences.

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Sr Adv Ahmadi: Their entire submission is misconceived.

Justice Dhulia: You are saying dominant approach and pith and substance as the same thing.

Yes: Ahmadi.

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AG Navadgi intervenes and highlights Bachan Singh case.

Sr Adv Ahmadi: That's not what the judgment says.

Justice Gupta: That argument was raised in the case, but it was negated.

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Sr Adv Ahmadi: You say everyone in equal.. you have to show someone else's right is violated. There is no argument on that ground.

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Sr Adv Ahmadi: I concede 25 is subject to other provisions of this part. There is no doubt about it.

It was argued that for Hijab, only look at 25. That's how I understood.

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Sr Adv Ahmadi: Uniformity is sought to be confused with fundamental duties.

I can understand a teacher has an issue when someone is doing a particular practice in classroom that impairs education.

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Sr Adv Ahmadi: Should there be a conflict between discipline and legitimate state interest of education?

Should state be stopping them only on account of display of religious symbol?

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Sr Adv Ahmadi: Even if the percentage of girls wearing Hijab is smaller, what do you gain by enforcing this type of discipline?

I urge Your Lordships to suggest that all these students get an education, it is itself empowerment.

#SupremeCourt #Hijab

Sr Adv Ahmadi: I could get some documents that suggest that the Karnataka State Commission for Protection of Child Rights had written a letter to the State that this will result in drop outs, and do something.

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Senior Advocate Huzefa Ahmadi concludes.

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Advocate Shoeb Alam responds to the court's query: Law under Article 19 is very different from law under Article 13.

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Justice Dhulia: So, 19(2) means statutory law only.

Adv Alam: Yes.

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Adv Alam: What Your Lordships have heard one repetitive argument that the notification is religion neutral.

Justice Dhulia rightly pointed out..

Justice Gupta: Their argument is that we are saying comply with uniform.

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Adv Alam: The same argument was used in St Xavier's.

Justice Gupta: That was your argument.. that you cannot barter.

Alam: Absolutely.

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Senior Advocate Devadatt Kamat: As per the Constitution published by the government of India- the translation is public order.

In their pleadings, the ground of public order has been taken. The submission that it's law & order is contrary to their statement.
#SupremeCourt #Hijab

Sr Adv Kamat: I ask myself - who's going to decide whether clothes are in the interest of unity, equality and public order?

Justice Gupta: The principle has to decide!

Kamat: Public order is a state subject. It cannot be delegated.

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Justice Gupta: Mr Kamat, don't take it to illogical ends.

Sr Adv Kamat: Under 143, it is only the statutory authority which can carry out direction of the State. The development committee has no statutory power.

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Sr Adv Kamat: There is a defeating silence from the other side on this. They say challenge the resolution. I am challenging the power in the CDC.

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Sr Adv Kamat: You say as per three judgments, not wearing a head-scarf is not a violation of Article 25. These three judgments do not relate to essential religious practice.

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Sr Adv Kamat: High Court says you are right, but we will supply reasons.

Justice Dhulia: High Court says you are right?

Kamat: Yes! I will show.

Justice Gupta: Mr Kamat, do not argue afresh.

(Sr Adv Kamat reads HC judgment)

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Sr Adv Kamat: All eminent counsel have made statements that till 2021 no one was wearing Hijab..there are no pleadings.

Justice Gupta: Their argument appears to be, you have referred to certain verses..

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Sr Adv Kamat: I'm on public order. They're saying till 2021- no one answered their right. My point and the HC also says that there was no pleading.

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Sr Adv Kamat: Its easy to make oral statements. There is a pleading that we entered wearing Hijab. No counter has been made to this. High court has noted this.

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Sr Adv Kamat: The only judgment of your Lordships court which dealt with students' discipline..

Justice Gupta: You have to finish.

Kamat: .. is Bijoe Eemmanuel. Not dealt with by them.

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Sr Adv Kamat: The stand they are taking today, it wan reversed by Your Lordships in Bijoe Eemmanuel.

Para 19 of the judgment takes care of essential religious practice.

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Justice Gupta: You went to the court. According to you it impinges your freedom.

Sr Adv Kamat: I have in the High Court as well said essential religious practice is not necessary.

Justice Gupta: You may not have. But the argument was raised.

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Sr Adv Kamat: The state has to first cross the threshold of a valid restriction under Article 25.

If the restriction is not valid, there is no question of a further enquiry. That is what is answered in Bijoe Eemmanuel.

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Sr Adv Kamat: The test they've applied is essentially flawed.

I put Krishna's photo in my pocket.. state says you cannot.. i come to court.. court cannot say is it essential religious practice? it is to be seen where the State's power to restrict is.

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Sr Adv Kamat: At the first instance of some disturbance, you cannot raise issue of public order.

Public order has to be interpreted in a manner in aid of fundamental rights.

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Sr Adv Kamat concludes.

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Senior Advocate Sanjay Hegde submits: One question has been coming which is essential religious practice was pleaded. You invited the court to decide on it.

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Sr Adv Hegde: There are judgments which say the court can decide on narrower grounds, notwithstanding broader grounds.

(submits citations)

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Sr Adv Hegde: the question of essential religious practice, did it have to be decided? No. Do you have to power, have you exercised it correctly, if you make an order which has the effect of exclusion- would it be just? On these grounds it could have been decided.

#Hijab

Sr Adv Hegde: Your Lordships are faced with a situation, maybe record all our arguments but say it is not necessary..

Justice Gupta: We have heard you all. Now our homework starts.

Thank you very much.

Court rises.

#SupremeCourt #Hijab #SupremeCourtOfIndia