The Supreme Court is hearing a batch of appeals challenging a Karnataka High Court verdict that effectively upheld the ban on wearing hijab in government schools and colleges [Fathima Bushra vs State of Karnataka].The Karnataka High Court had on March 15 upheld a Karnataka government order (GO) effectively empowering college development committees of government colleges in the State to ban the wearing of hijab (headscarves) by Muslim girl students in college campus.The petitioners - Muslim girl students from various colleges in Karnataka - had approached the High Court after they were denied permission to attend classes on account of wearing hijab.A three-judge Bench of then Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi had held that:- Hijab is not a part of essential religious practices of Islam;- Requirement of uniform is a reasonable restriction on the fundamental right to freedom of expression under Article 19(1)(a);- The government has the power to pass the GO; no case is made out for its invalidation.One of the pleas before the top court has argued that the High Court "failed to note that the right to wear a Hijab comes under the ambit of ‘expression’ and is thus protected under Article 19(1)(a) of the Constitution."It has also contended that the High Court failed to take note of the fact that the right to wear Hijab comes under the ambit of the right to privacy under Article 21 of the Constitution of India.During the hearing on September 5, the top court had asked the appellants whether students can come wearing whatever they choose to in a government institution which has a prescribed uniformA Bench of Justices Hemant Gupta and Sudhanshu Dhulia also remarked that the Karnataka government's order allowing college development committees to prescribe uniform did not seem to violate right to education.When the case was heard on September 7, the Court told the petitioners that if right to dress is claimed as an absolute fundamental right under Article 19 of the Constitution, then right to undress would also qualify as one."We cannot take this to illogical ends.. if you say right to dress is a fundamental right then right to undress also becomes a fundamental right," Justice Gupta said.Live Updates from hearing today below..Hearing begins..Senior Advocate Kamat: This is the provision in the Constitution provision in South African constitution. It is correct that South Africa is much more diverse, and the scope of protection is wider..Sr Adv Kamat: There is one judgment in Austria.. there was head scarf ban targeted at one community which was held unconstitutional. It has to be seen that my attire does not fall foul of public order even if its not a core religious practice..Sr Adv Kamat: Sr Adv Parasaran wears a religious symbol, but does it disrupt public order. Justice Hemant Gupta: You cannot compare lawyers appearing in court as there is a uniform. Other day Dr Dhavan cited Pagdi but in Rajasthan people wear Pagdi as a matter of routine..Justice Gupta: In Gujarat also there is Pagdi which is matter of routine, Am I correct Mr Mehta? (SG) Solicitor General: Yes, Pagdi or some cap..Sr Adv Kamat: But it cannot violate public order. Now citing the Supreme Court decision which was around carrying out Tandav etc. It was observed that public order cannot be destroyed..Justice Hemant Gupta: You wearing hijab in public does not offend anyone. But if you wear it in school then what kind of public order are we talking about?.Sr Adv Kamat: Public order here is responsibility of the school. Suppose I wear a head gear on road and there is ruckus, police can come and tell me not to wear it as it disturbs public order..Sr Adv Kamat: In a constitutional scheme is Hitler's veto permissible? There are precedents which states that such a thing is not possible, this is US judgment which was followed in India by a 2001 judgment..Sr Adv Kamat: I was on virtual hearing last time and the Karnataka Advocate General said the Government Order was issued after some students demanded to wear saffron shawls and the ban was imposed in that context. Here the question is can hecklers veto be allowed?.Sr Adv Kamat: So Milord, there cannot be a ground that public order will be violated. It is your duty to create an atmosphere where I can exercise my right in accordance with Article 25 of the Indian Constitution !.Sr Adv Kamat: This often happens in case of films when some people don't like a film, and this court has held that hecklers veto cannot be implemented here when an expert body has cleared the film..Sr Adv Kamat: This often happens in case of films when some people don't like a film, and this court has held that hecklers veto cannot be implemented here when an expert body has cleared the film..Justice Gupta: You are citing a cases which was an apprehended breach of cases.Sr Adv Kamat: That is my argument.. if there is an apprehension of breach of public order how can the hijab be banned. Supreme Court: You are still not answering our question..Justice Gupta: Public order is the responsibility of the state, which includes court as well due to lack of public order. There is no dispute about it..Sr Adv Kamat: I bow down if it is clear that the state cannot take a facile ground like this. I am saying just because there is a disturbance you cannot just ban something. That is what I am saying. Hecklers veto principle has been adopted by this court..Kamat: GO uses the term public order. I am not making submissions in the air! If they did not raise it why will I submit it.Justice Dhulia: You read the GO and what dress code came out of it? .Justice Hemant Gupta: Do not waste your time on public order Mr Kamat..Sr Adv Kamat reads the government order: Wear uniform in the interest of unity and public order.Justice Dhulia: What is the problem? Justice Gupta: But they say prohibition of headscarf is not a violation of Article 25. Sr Adv Kamat: High Court is saying you can prohibit it..Sr Adv Kamat: Pursuant to the GO, hijab clad girls have not been allowed entry. Justice Dhulia: So they derive powers from the GO. Is there a written order by schools? Sr Adv Kamat: No, there are no written orders..Justice Gupta: This is not a fundamental right violation. It is not the positive right, but the negative right that you want to assert. Sr Adv Kamat: Article 25 rights cannot be contained in a pigeonhole of negative rights. It is the penumbra of rights which makes existence worthwhile..Justice Gupta: Do you want us to address on all the questions?Sr Adv Kamat: I am not going on essential religious practice. I am not on Quranic injunction. Supreme Court: There are 15 counsels. Sr Adv Kamat: None of us will repeat. Supreme Court: Okay..Sr Adv Kamat: Article 25(2). Nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;.Sr Adv Kamat: State can make a law to regulate secular activities. Right to education act is a social welfare legislation and then they say hijab can be prohibited..Justice Gupta: We have to see what does other secular activity means? The second part is for only Hindus? Sr Adv Kamat: No, this court has held it applies to all religion starting from the Hanific case. State in zeal to put it under 25(2) tried to pick a needle from a haystack..Sr Adv Kamat: Please see the preamble of Karnataka Education Act... Any restriction on right must be direct and proximate, not indirect or inferential. The High Court also referred to it. As per the state preamble is a restriction..Sr Adv Kamat: High Court says the objective of promoting secular outlook as in the Preamble is a restriction. This can never be a constitutional scheme. Where is this that Hijab is lowering dignity? Then comes Section 7 of the Act..Sr Adv Kamat: Section 7 is about scheme to promote harmony which the State can make under Section 7. This has been construed as a restriction on wearing hijab..Sr Adv Kamat: Here the High court has stated that the GO is as clear as Gangetic water.. but I would say that its totally muddy. A link such as this must be proximate and rational and direct..Sr Adv Kamat: Restriction on public order must be real and proximate and not far fetched..Sr Adv Kamat: Is there a restriction on wearing headscarf under law. There are none..Justice Gupta: You have covered question 17 also. Sr Adv Kamat: Now the question whether uniformity in public can be a ground to ban hijab, the next question is on discipline .. does hijab violate discipline.. it does not. Then I come to the point of religious jingoism..Sr Adv Kamat: Wearing of an orange shawl is not an innocent display of faith. Wearing orange shawl is an belligerent display of faith and Article 25 does not protect it. Rudraksh, namam, etc are innocent display of faith..Sr Adv Kamat: High Court says freedom of conscience and freedom of religion is mutually exclusion. It is either, or in my submission that is not the case..Kamat: An example nothing to do with hijab. Our hindu scriptures provide for 16 elements involved in puja. Today someone lights a diya. Is it freedom of religion or freedom of conscience..Sr Adv Kamat: In Hindu religion we worship deities and somebody carries photo of krishna or rama in my pocket... I used to carry a photo.. it gave me security... is it freedom of religion or conscience. the boundaries where one ends and another begins... such borders are nebulous..Sr Adv Kamat: High Court has entered a dangerous zone, and all these rights are dependent on each other. That is why our constitution framers have also not entered this domain..Sr Adv Kamat: Yes, constitution framers were very erudite people but whatever they said cannot be taken as gospel truth, the chairman Dr Ambedkar can be of some relevance. In this case Shri Ghanshyam Singh Gupta spoke on freedom of conscience..Justice Dhulia: There may be a person who don't follow any religion.. Sr Adv Kamat: Yes one may not, but he may follow a religious practice of one religion and there lies the intersection..Justice Gupta: Mr Kamat I think you have breached your time limit.Sr Adv Kamat: Just 10 to 15 minutes more..Justice Dhulia : According to you, essential religious practice is not to be seen in article 25? Sr Adv Kamat: I say at the second stage. We have to first see if it is a valid constitutional restriction. Justice Dhulia: No, but if it's not ERP then no question of entering this..Sr Adv Kamat: Regarding ERP, there is a divergence of views between Karnataka, Kerala and Madras High Court judgments on whether hijab is an essential religious practice. Madras and Kerala have held it is essential, Karnataka HC has not agreed..Sr Adv Kamat cites the issues framed by the larger bench in Sabarimala review case: this deals with scope of judicial review in such religious affairs cases. On the face of it this GO cannot stand for several reasons..Justice Gupta: We have seen the GO.Sr Adv Kamat: Please see the reasons I am citing. There are three judgments referred and none of the judgments say that Hijab is not protected under Article 25. This GO suffers from non application of mind as none of these cases are on Hijab..Sr Adv Kamat: High Court says reasons do not matter and since power is there and it is sufficient. My submission is either GO stand on its own or falls. High Court has supplanted reasons for the GO and that is impermissible..Sr Adv Kamat: Further such a power cannot be given to the college development committee. The committee has MLA, parents. I submit that such a power cannot be delegated to a non-State actor. MLA is the president milord. Please see the repercussions..Justice Gupta: So you don't want a representative people to be there? Sr Adv Kamat: This court has HELD that a MLA is not an authority subordinate to the state government. Can these eminent people decide what is moral ? Look at the enormity of such decisions which is totally illegal..Sr Adv Kamat: Even on administration law principle, it is a complete violation of Section 143 of the Act. High Court says it was not challenged but I need not. Inputs are welcome from an MLA but when invest state power on them then that becomes the problem..Justice Gupta: Thank you Mr Kamat.. Sr Adv Kamat: Please see my prayer on Article 145(3).. it is mandatory to refer.. see what 9 judges of this court held.. that is why constitution entrusts this work to a 5 judge bench at least. I am grateful for a very patient hearing..Senior Advocate Devadatt Kamat concludes submissions..Advocate Nizamuddin Pasha submits on the point of Essential Religious Practice: I am a student of Islam and Arabic. The first question which needs to be answered in what is the test of essential religious practice..Advocate Pasha refers to the Shirur Mutt case: Advocate General in Shirur Mutt case said all secular activity concerned with religion but may not be ERP falls under state regulation. This argument was rejected..Justice Gupta: Let me read the judgment..Advocate Pasha: In Dargah committee case the test of essentiality was formulated. It was a 5 judge bench. Justice Gajendragadkar authored the judgment..Adv Pasha: Law on ERP is by way of an obiter in the judgment. Justice Justice Dhulia: What is the argument? Adv Pasha: Whether or not ERP has to be protected or all religious practice has to be protected is the question. All cases from seven to five judges have differed..Adv Pasha: In a composition of two judges bench you have to decide whether this conflict between Shirur mutt, dargah committee and Bijoy Manuel can resolved by this bench. 7 and 5 judges have a conflict and then three judges differed and now 9 judges are seized of it..Justice Hemant Gupta: If that situation arises we will look into it..Adv Pasha now cites the Babri Masjid judgment: Please see the word of caution sounded by 5-judges in Babri Masjid judgment regarding reading of scriptures. "this court must be careful while choosing out of many interpretations of theological doctrines"..Adv Pasha: Culture and religion is intertwined. Supreme Court said "this court must reject any attempt to interpret religious scriptures" Justice Hemant Gupta: Question was whether Ram Lalla was there or not.. that is why this para 19 etc was made..Adv Pasha: Shayara Bano case is often cited to show how Muslim religious scripture be interpreted, but that is not correct. Justice Kurian Joseph interprets religious scripture in Shayara Bano, Justice Nariman did not and there was no unanimity among three judges on that point..The hearing will resume at 2 pm..Hearing resumes..The bench will assemble shortly..Adv Pasha: : Please let me highlight three sources of Mohammedan Law. Quran, Hadis(sayings and traditions of Prophet), Ijma, Qiyas. High Court cites and starts unrelated phrase that nothing is compulsion in religion and uses it to declare that Hijab is not mandatory..Adv Pasha: The verse which shows no one can be compelled to convert has been used to hold Hijab is not mandatory in this case. Justice Gupta: Tell us which verses which say hijab is necessary?.Adv Pasha: Please see the verse which shows how women should draw veil over bosom and how even for men lowering the gaze is important..Adv Pasha: The word used in Quran for Hijab is Khimar. In India we call it Hijab. Like in Arabic prayer is called Salah and in India we call it Namaaz. It is one of the pillar of Islam. Khimar is defined in Oxford dictionary as a piece of cloth covering head..Adv Pasha: Since this is an Arabic word, you will find it in the thin volume citing the translations of the word..Adv Pasha: Khimar is a veil covering head and face of women. It is important since some readers of Quran like Abdullah Yousuf Ali.. Justice Dhulia: Just take us to the part of the judgment where it has been dealt with and then make your submissions..Adv Pasha: Please see page 62 of the High Court judgment. High Court says such practice must be binding in nature and must be compelling in nature. High Court had quoted the Prophet saying "let there be no compulsion in religion", this is a gross is misunderstanding of the verse. It is on conversion..Adv Pasha: Conversion cannot be forced and no one can be converted to Islam if they don't want to. That was the idea behind let there be no compulsion. Now the 5 pillars of Islam..Justice Gupta: What are they? Adv Pasha: Tauheed (faith in Allah, destiny and commandments), Roza, Namaz, Zakaat and Hajj..Justice Gupta: Okay, it is Tauheed.. I wrote Tauheen.Adv Pasha: It is imaan.. it is quite the opposite. Justice Gupta: Can you spell it?Adv Pasha spells it: It is the belief in oneness of Allah and the books of Allah, angels of Allah and the destiny..Adv Pasha: What is written in the Quran is part of Tauheed. You may give charity but if you don't have faith it will not be zakaat. So first tenet of Islam is about you have to believe in one ness of God.Justice Dhulia: Again you are taking the other way round.. tell us about order..Adv Pasha now turns to Surah An Nur. Justice Dhulia: Is hijab specific to Islam? Adv Pasha: That is why verses are important.. Surah An nur... shows how women should draw veil over their bosoms...Adv Pasha now cites Surah Al Ahzab: Tell thy wives and daughters, and the believing women, that they should cast their outer garments over their persons (when abroad): that is most convenient, that they should be known (as such) and not molested..Adv Pasha: The High Court order now cites that hijab is a mere screen or partition or a veil.Justice Gupta: You read the Quran, then Hadees. Where are we? Adv Pasha: Surahs are verses of Quran. There are 114 chapters of Quran Justice Gupta: Sorry, I am showing my ignorance..Adv Pasha: High Court judgment now comes on hijab ... Milord hijab marks the difference and protects the identity of a Muslim women. This was there a because Muslim women had to be identified as a part of a strong community and so that incidents of molestation etc. does not happen to them..Adv Pasha: Jilbab is when entire body is covered with a robe. Hijab is only the head.Justice Gupta: How is it different from Burqa? Adv Pasha: it is a colloquial term, similar..Justice Gupta: What is the word OFT used after God? Adv Pasha: It is for often. In Quran, like Bible, old English is uses for translation. There will be words like Thine like we use showeth in our submissions...Adv Pasha: High Court judgment has drawn a conclusion from footnote that verse is recommendary and not mandatory.Justice Dhulia: You are on Abdullah Yousuf Ali translation?.Adv Pasha: But footnote is not here it is from somewhere else and pasted here to show as if it is a footnote here which is not the case High Court judgment has drawn a conclusion from footnote that verse is recommendary and not mandatory..Adv Pasha: But footnote is not here it is from somewhere else and pasted here to show as if it is a footnote here which is not the case. Justice Dhulia: But the footnote here is 57.. correct no?.Adv Pasha: No it concerns Jilbab and not Hijab. Many feel jilbab is not mandatory but bench has considered to be the footnote of hijab.. Justice Dhulia: So the scholar says God will forgive you if you don't wear jilbab. But this is not about Hijab. Adv Pasha: Absolutely Milord..Justice Dhulia: Where is it about Hijab? Adv Pasha: Surah 24 is about Khimar. If you see the commentary here... it means that even if women meet other women who are not part of a household then also you wear the hijab... .Justice Gupta: Please carry a proper print out of Verse 35.. and its commentary.Adv Pasha: Of course Milord. thus, due to misreading of the commentary High Court comes to the conclusion that Hijab is only recommended and not mandatory in nature. Justice Gupta: Let us read..Adv Pasha: There is no temporal punishment for a violation of the spiritual act. here it is only about wrath of hellfire and there is no penalty in this world. If I fail anything of five pillars there is no temporal punishment..Justice Gupta: One is desirable aspect and one is mandatory aspect... Justice Dhulia: We are on directory and mandatory. Justice Gupta: Show us the verse on Tauheed.Adv Pasha: I can take a minute to read out that part..Justice Gupta: You are saying there is no temporal punishment for hijab... where is this coming from? So no temporal punishment for namaz, zakaat etc... then hijab is at much lower footing. How can it be mandatory?Adv Pasha: It is all word of God and the belief in the word of God..Justice Gupta: Mr Pasha you have explained your point very well..Adv Pasha: Please see the High Court order which says that Hijab is at best a cultural practice only. These are not finding based reasoning but the assumption of judges only..Adv Pasha: High Court judgment cites opinions of commentators are but even that does not support the conclusion. These are not even the verses..Adv Pasha: The commentator speaks about the time when Islam originated there was jahaliyyah and there were incidents of molestations and how hypocrites thrived then. But the High Court says that since this is about that time it has no implication now. Justice Gupta: You are right..Adv Pasha: The last verse of Quran meant that religion of Islam was perfected by God for all times to come. High Court saying that verse of Quran is not relevant now anymore borders on blasphemy!Justice Dhulia: Don't go so far.Adv Pasha: the commentator is not saying this, the judge is saying..Adv Pasha: Now coming to Hadees, Aisha the wife of Prophet narrated the hadith. It is a way of understanding the Quran. Aisha used to say that ladies used to draw the veil over their bosoms..Adv Pasha: When a believing girl says that she wants to wear the hijab as its more important to her than the whole world, and then giving the woman a choice between education and hijab it is like depriving her of a choice milord..Adv Pasha cites Suran An Nisa: This is a verse on woman. Quran says obey God and obey the Prophet. Nothing can be greater than this..Adv Pasha: High Court questioned the translation placed by Muhammad Muhsin Khan, doubting his credentials. It was because of Shia and Sunni. How can that be a basis? The triple talaq was not even there in Quran or Hadees and that is why 1400 year old practice was not lawful..Adv Pasha: But Hijab is there in the Quran and the scripture. Then High Court judge while disclosing sources cites Muhammad Muhsin Khan. Justice Gupta: Give us a short note on the couple of verses..Adv Pasha: This case will require an reference on the interpretation of Article 29.Justice Dhulia: Article 29(1) is not attracted here.Adv Pasha: Even as a cultural practice is protected like wearing of a pagdi. Even then wearing of hijab is protected..Adv Pasha: When hijab is a part of religion of a girl then can the girl be stopped from coming to school. Even Sikhs wear turban.Justice Gupta: there are statutory requirement on Turbans. Five judge bench of this court held that wearing turban and kirpan is allowed for Sikhs..Justice Gupta: That is why we are saying comparison with Sikh may not be proper. 5 Ks of Sikh has been held to be mandatory..Adv Pasha: Like the 5Ks is the 5 pillars of Islam and that is the exact position for us. Unlike France, Sikh boys here wear turban to school and it did not interfere with the discipline of the school..Justice Gupta: Please do not compare with Sikhism It has been completely ingrained in Indian cultureAdv Pasha: So similarly Islam is also there for 1400 years and the Hijab is also present..Adv Pasha: I was hearing arguments on France and it was like we are deluding ourselves.Justice Dhulia: Don't even go there. Then you don't have any case. You will not even stand if we go there. We are not going there..Adv Pasha : We are deluding ourselves if we think we are like France.Justice Gupta : We do not want to be at par with France or Austria. We are Indians and want to be in India.Adv Pasha: Please see the human impact of what we are considering today..Adv Pasha: A survey of Sikh students in France show how they felt humiliated to enter school. It showed how they lost their identity and how they wanted to leave the country. Even Muslims. 806 Muslim students were negatively impacted..Justice Dhulia: Have you submitted this report to High Court?Pasha: No Milord. I am submitting this here..Justice Gupta: Mr Kamat said God is one and there are different ways to achieve it. But I said Hinduism says so but what about other religion?.Adv Pasha cites the chapter on non-believers: O Prophet,˺ “O you disbelievers! I do not worship what you worship, nor do you worship what I worship. I will never worship what you worship, nor will you ever worship what I worship. You have your way, and I have my Way.”.The case to continue on September 12, 2022..Senior Advocate Salman Khurshid: I am happy this hearing is moving fast. whichever God it is.. every good thing must happen fast and the blessings will be on you.Supreme Court: Yes... Please take 30 minutes.Sr Adv Khurshid: I will be concise.