A full-bench of the Karnataka High Court will continue hearing a batch of petitions filed by female Muslim students against the ban on wearing hijab by certain Karnataka colleges.The bench comprising Chief Justice Ritu Raj Awasthi and Justices Krishna S Dixit and JM Khazi had earlier passed an interim order, directing students not to wear hijab, saffron shawls (bhagwa) or use any religious flags while attending classes in Karnataka colleges which have a prescribed uniform in the interim.Yesterday, The Karnataka High Court orally clarified that this interim order was applicable only to students and not teachers.The petitioners had also filed an appeal before the Supreme Court against the interim order but the top court is yet to hear the same.The matter before the High Court was earlier being heard by single-judge Justice Krishna S Dixit who on February 9, referred it to a larger Bench stating that the case involves important issues.Senior Advocate Sajan Poovayya, appearing for the College Development Committee (CDC) submitted in the previous hearing that education is secular activity in which religion has no role to play.The hearing will resume at 2.30 PM today.Read live updates from yesterday's hearing here.Read more on the State’s affidavit before the High Court here.Read more about the petitions before High Court here and here.Live updates from today’s hearing below..Advocate General Prabhuling Navadgi refers to Senior Advocate SS Naganand's submissions on Campus Front of India and complaint made by teachers. AG says he has filed something in sealed cover. Court says it will consider this at the end of the hearing..Senior Advocate Guru Krishnakumar commences submissions on behalf of respondent..The regulation sought to be challenged would have to be considered from the point of the objective it seeks to achieve. The objective is bringing about uniformity in treatment of students in educational institution: Krishnakumar..The moment a student comes in an education institution and partakes in secular education any regulation which seeks to achieve non discrimination cannot be questioned on the premise of Article 25: Krishnakumar..The purpose of uniform itself is to completely remove the background of the student - what is his caste, colour, creed, religion is completely obliterated: Krishnakumar..The regulation would have to be tested on the anvil of the objective of non-discriminatory treatment of students pursuing secular education in a secular space: Krishnakumar..Second point is on nature of jurisdiction of Constitutional courts in such matters. The claim of petitioners is hijab is part of essential religious practice and is protected under Article 25: Krishnakumar..When dealing with such matters, Constitutional courts do not exercise ecclesiastical jurisdiction when such claim is made. It is really as a matter of Constitutional necessity that courts get into it: Krishnakumar..Hence, there is limitation on what kind of determination can be done. This has been taken note of by Supreme Court in Adi Saiva Shivacharya v. State of TN: Krishnakumar..Krishnakumar reading the judgment. .My submission is please look at the claim of the petitioners from the objective sought to be achieved by the Regulation. It deals with secular activity of education and not anything religious: Krishnakumar..Krishnakumar: The third aspect is about the curricula under the Karnataka State Education Act. Reads out Section 7(2) of the Act..The curricula under may also include schemes in respect of inculcation of the sense of the following duties of citizens, enshrined in the Constitution namely "to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious linguistic and regional or sectional diversities to renounce practices derogatory to the dignity of women.".The purpose of uniform is to bring quality in a common platform. The Act,therefore, consciously contains a provision of this nature and that is how regulation question would also have to be considered: Krishnakumar..Krishnakumar: There was a reliance on Article 19(1)(a), freedom of speech and expression. There can be speech and non speech components in the freedom of expression, this is in the "non speech" component..A principle has evolved in foreign jurisdictions which has been recognized by India - That non speech freedom can be restricted in favour of common good: Krishnakumar..He cites Bennet Coleman v. Union of India on newsprint policy. The policy itself was struck down but the principle was noted. .Krishnakumar: The regulation (GO) in question will have to be also understood in the light of the fact that it is not intended to achieve the goal of interference with religious rights..The goal of GO is to regulate activity part of pursuing education secular activity and not to interfere with religious freedom per se: Krishnakumar..Hence, the grievance projected by petitioner would not be justified. Krishnakumar concludes..Sr. Adv Devadatt Kamat submits that there are new petitions constantly and he wants time for his rejoinder. CJ Ritu Raj Awasthi: Let all the petitioners be heard first..Sr Adv Kirti Singh for All India Democratic Women's Association (AIDWA) begins submissions..AG Navadgi says the petition does not disclose under which law the petitioner association is registered? CJ Awasthi: Are you registered? Singh: We are not registered. We are a mass organization of women being represented by our Vice President. We have fought several PILs..In Delhi HC we are currently arguing in the petition in marital rape cases. The Karnataka chapter has 1 lakh women of all religions and creeds, Hindus, Muslims Christians particularly marginalized women. SC/ ST women: Singh..CJ Awasthi: Is there any authorization in favour of your Vice President? Adv: There is a resolution of Feb 15, 2021 annexed. .CJ Awasthi: What is the constitution of the committee which has taken the decision. The resolution does not say it. You have to annex the resolution and the proceedings which disclose the constitution of the committee and the authorization of the President to file the PIL..Adv Aditya Chatterjee: I will ensure additional documents required are placed on record..CJ Awasthi: Ok. We will come to maintainability. Why do you need to come and espouse the cause before the Court when the aggrieved persons are before the Court?.Entire picture has not been put before the court including legal picture: Singh. CJ Awasthi: Please go and assist the persons who are said to be aggrieved and have approached the Court. We cannot permit you to espouse the cause of persons who are already before the Court..Adv Kirti Singh: The petitioner association has members who are affected by this impugned order..Singh: We are a genuine party, we have filed a number of petitions before many lower courts, High Courts, Supreme Court. CJ Awasthi: We are not on your credentials. The petition would not be maintainable when the aggrieved persons are already before the Court..Adv. Singh: Members of our organization are aggrieved. The petitioner no. 2 has 3 children who are being affected by this GO..CJ Awasthi: We are not satisfied about maintainability of the petition. Aggrieved persons are represented by very competent lawyers..Singh: Will Your Lordships not hear me? Nobody has spoken of the different principles and we will put the women's perspective in front of you. Justice Dixit: Supreme Court Personal interest and public interest cannot be an admixture in PIL jurisdiction..CJ Awasthi: We will hear you in some other matter. Singh: There is no reason why the hijab should not be permitted in schools. We are not against uniform but we have to see what is least restrictive way of not interfering with right to education that these girls have..Justice Dixit: All of this has already been argued. Singh: "We want to say why Art. 19(2) will not apply, why wearing of scarf is not a public order issue. The court is under an obligation to strictly scrutinise this legislation...." Next case called..Nobody responds. PIL dismissed for not complying with Karnataka PIL Rules..Two other petitions withdrawn by Adv. Mohd Tahir. .Sr. Adv. AM Dar begins arguments. Is this a govt college? CJ Awasthi. Dar: Yes.AG: It is a private institution. Dar: I have been denied from entering. That is why I am before Your Lordship..CJ Awasthi: Is this a govt college? Dar: We have been prevented from entering. Justice Dixit: You are not answering Chief Justice question. Dar: It is govt aided. AG: I have studied there. It is a pvt institution..There are 3 important issues, one is to prove that it is essential religious practice which can be seen from the Koran..There are 4 kinds of coverings. One is burka, one is abaya, it covers everything. Then is ihram, and then hijab: Dar..Hijab is mandatory in Islam. It is the last commandment from Allah. It has come in fourth hijri. By that time Quran was almost complete. It came last: Dar..First commandment is obligatory daily 5 prayers. Nobody can say no. It is another thing whether all Muslims do it or not: Dar..Second is Zakat, third is rulings of inheritance which is defined in Koran. Fourth is fasting in Ramadan which is compulsory, with a few exceptions. Hijab came during the fourth Hijri..CJ Awasthi: Which is the 5th commandment? Dar: Haj. The word hijab is not in Koran. Hijab refers to a partition. It is a screen between one individual from another. It is mandatory, even the wives of Prophet would wear it..AM Dar: I will recite in Arabic, I will not mislead your Lordships. I will try to best of capability to apprise of the Koranic verses which is on the basis of commandment of allah. I will never mislead Your Lordships..Dar reading out from Quran. Submits that hair, face and chest must be covered to protect modesty and privacy. Believing women must wear khimar and cover chest. We only want to cover head, hair and chest. We are not saying we will go in burqa: Dar..It is a small part we are covering - all three vulnerable parts - head, hair and chest. These are sensitive parts of body of women. They should cover so that people don't gaze at women: Dar..Dar: That time this practice was prevalent even among Christians. We have to cover the chest, it is mandatory. It is a question of life and death for us. We do not want to destroy anything secular..Dar: We have to face the judgment. Your Lordships are sons of Indian soil, we are all sons of Indian soil. Muslim women will be identified by Burkha. Wearing it is not by compulsion. It is sacred to us..Dar: It is not by way of fashion, the Koran has said that you have to cover your sisters and daughters with the scarf, it is mandatory for us..Dar recites Surah in Arabic..Dar: Duniya, this world is artificial and what is better is eternal life. After this life you have to face the judgement. This artificial life is only for 100 years, 60 years or 70 years..Dar: You will be accounted for at the grave on the day of judgement..My Ladyship may be in a position to understand. This is very important. We have to be ready to face judgment: Dar..Receiving education is also an essential part of Islam: Dar..CJ Awasthi: We want to know which Surah this is. Dar: I will give (Dar gives details). .Dar: This religion has 2 billion people across 57 countries. We are proud to be Indian citizens. We are second largest community India. We love to live in harmony and love brothers of majority..We have fought wars together. We fought for independence and establishment of Constitution together: Dar..We are a democratic country. How will hijab create public order? When offering prayers, ladies have separate space. But during haj we do it together since it was exempted by Prophet: Dar..But during Haj also women have to wear scarf to cover chest, face, head: Dar..Dar: I will now come to the constitutional aspect, religious aspect has been covered. CJ Awasthi: Legal issues have been covered. Dar: Only 5 minutes I will take..Dar: Your Lordships are aware and are masters of the judgments. CJ Awasthi: We know what you tell us..Dar: We have protection under Article 25, and also the Preamble which nobody has touched till now. Dar reading from the Preamble, emphasizes on liberty of thought, expression, belief, faith and worship..Dar: In Kesvananada Bharati judgement, the Preamble was found to be a part of the basic structure of the Constitution..It is protected by Constitution. We are such a country, our economy is growing day by day, we are proud to be the largest democracy. We are not a banana republic. We live in harmony and brotherhood: Dar..Dar: Scarf is a small issue for such a big country. Our heart should be open, it should be wide. Scarf enhances reputation of the lady, it purifies and gives modesty. .It does not cause public order issue. It is not causing any immorality: Dar..If someone keeps desecrates image of Lord Rama or any Hindu goddess then it is public order issue. If you desecrating the image of other religion, then it hurts feeling and it can be public order. But simple covering head, how it causes public order: Dar..Justice Dixit: Please show mercy to other friends also. There are many other advocates who also have to argue Dar: Just 3 more minutes. Dar refers to three judgments..Dar: This is a marginalized community as far as education is concerned because of our own fault. We live in harmony and in diversity. Please allow our girls to cover their heads. It won't cause prejudice to anybody..Dar: This is not a Hindu rashtra or an Islamic republic. It is a democratic sovereign secular republic where rule of law must prevail. This is community which produced Kalam sir who is missile man of India..Please come to our rescue. The interim order is unconstitutional as it suspends fundamental rights. This is a question of life and death. We will have to leave our education because we cannot compromise on these principles: Dar..Adv. Subhash Jha begins. Justice Dixit: You have not paid the court fees. Without fees we will not touch the papers. Jha: I will pay it during course of the day..CJ Awasthi: Not only court fees, 14 objections are there in the petition. It is not maintainable without court fees and requirements of a writ petition. .Adv. Jha: We will clear office objections by tomorrow. CJ Awasthi: We can grant you time to clear objections. Petition to be heard tomorrow..Rejoinder arguments start. Sr. Adv. Devadatt Kamat commence..Kamat: I have learned a lot from the scintillating arguments. In a lighter vein I feel like a batsman, there have been fast deliveries from both sides. CJ Awasthi: You were the opener..Some are good length deliveries which I have to deal with. Some are wide deliveries which Court has to decide whether to consider or not. Some were no balls perhaps inadvertent- overruled decisions, dissenting judgments were cited: Kamat..This is on lighter vein: Kamat says. Justice Dixit: There should be some humour in the Court also..Kamat: I am not representing a PIL client or any community, I represent my petitioners. I have specifically pleaded that we have been using a headscarf right from our admission and till the GO came and we were stopped thereafter. There is no reply or rebuttal to this averment..Secondly, this is a co-ed school: Kamat. CJ Awasthi: When were you admitted? Kamat: We were admitted two years back..I am not asking for a general declaration that headscarf is part of essential religious practice. My primary challenge is to the GO..Much of my task as far as this GO is concerned has become very easy because 90% of the GO has been given up by the AG, has been conceded My Lord: Kamat..Kamat: The AG has clearly said that the 3 judgments relied by GO on hijab is not the purport of the Order (judgments referring to hijab). He said it might have been result of over enthusiasm by drafters and it might not have been required..Kamat: These 3 judgments do not say that headscarf is not a part of fundamental rights, this was given up by the AG. This part of the GO according to me, has to go..Even if your Lordships were to discard the concession made by the AG, this part of the GO has to go because it offends the doctrine of dictation in administrative law: Kamat..By this GO, the superior authority says to subordinate authority, 'you do as you want, but hijab is not part of Article 25.' That is not permissible: Kamat..Kamat: The third reason why this part of the GO has to go is that there is no material. If the judgments are irrelevant, then what is the material to arrive at this prima facie understanding that hijab is not a part of fundamental rights..It cannot be the ipse dixit of some administrative official: Kamat..On operative part of GO, also AG says last three lines were unnecessary and not required: Kamat..On 'public order' in the GO, the affidavit they have filed they say public order: Kamat..The GO says 'public order', the translated version a definition which is against the Constitution is put. In affidavit, 'public order' is reiterated. Is this the way a GO is read: Kamat..Kamat to Justice Dixit: At our age we don't remember citations, I am amazed at Your Lordships memory. It is God's gift. Justice Dixit: Even tolerance also. Bench laughs..So 'public order' ground has virtually been given up. Now coming to point of whether College Development Committee has the jurisdiction to undertake this exercise as contemplated by GO: Kamat..AG says it is Westminster model, MLAs are there, they are public representatives. What is wrong. I say everything is wrong. We don't have to go to Westminster. Please have a look at Section 143 of Karnataka Education Act: Kamat..I am challenging the investing of executive and statutory functions to the CDC: Kamat says; reads out provision..An MLA is not an officer subordinate to the State Government which has been covered by a judgment of the Supreme court Ashwini Kumar Upadhyay vs Union Of India: Kamat..They have argued that we have not challenged 2014 circular. I do not need to challenge it. As long as circular which prescribes CDC remains marga darshak mandal, I dont have problem. Let the CDC guide the college, the MLA can be a guiding force: Kamat..But the problem is when you invest CDC with statutory functions: Kamat..On all counts this GO cannot stand, whether the penultimate part or the operative part. The GO has to be quashed. If the GO goes there is no restriction ipso facto on the exercise of a fundamental right under Article 25: Kamat..The proposition which I want to place... judgments after judgments on ERP have been cited without actually telling the Court when does the stage of ERP come in an constitutional adjudication: Kamat..Justice Dixit: You cannot bring new grounds in a reply, this has been laid down in many decisions. Kamat: What I am saying is the ERP question was raised by us only as an attack on GO. The GO falls and matter ends. But since ERP has been raised, it becomes my duty to point out...When you say GO goes, there wont be restriction in exercise of fundamental rights, what is that fundamental right? CJ Awasthi. I will start tomorrow on this: Kamat..CJ Awasthi: We will extend our sitting you finish it today, We have experience that we give you more time and you take 2 hours..Adv. Kamat: Your Lordships have been very patient with me. ERP stage does not arise in this particular case: Kamat..When a challenge is made that 25 right has been violated, the first question is where is the restriction. Once there is a valid restriction - valid law or order having the force of law then the second stage of scrutiny is whether it impinges the right upon ERP: Kamat..I am saying the State has not satisfied first threshold has not been crossed. The GO has gone. So what remains is Rule 11: Kamat..CJ Awasthi: How can you insist on wearing hijab in institution which has a uniform. What is this fundamental right you have is what we want to understand?.Kindly have a look at Article 25(2)(b): Kamat. CJ Awasthi: You are insisting to wear particular headdress in an institution which has a uniform. You have to establish what fundamental right is being infringed. Forget about what the State has said. Show right under Article 25(1)..Kamat: Kindly see Article 25(1); reads article 25. It includes essential practices and non-essential practices. It is a canopy of rights: Kamat..You are saying it is part of religious practice. Then kindly establish that: CJ Awasthi..I would like to differ slightly in approach. Before Your Lordships question me on where is my right, I would ask myself, where is the restriction because 25(2) is very clear on what can be restricted...: Kamat..We are not talking about any restriction. We are just talking about your right which you are insisting for: CJ Awasthi. My right flows from the Quran: Kamat. You say it need not be ERP. So we want to know what right has been infringed: CJ Awasthi..The question is whether the Rule made under Education Act prescribing uniform is a measure of social reform as far as Islam is concerned: Kamat. CJ Awasthi: Art 25(2) is reformatory power. It is not for enacting Education Act and prescribing uniform..In Bijoe Emmanuel the SC did not ask the students, show me your right. They asked, show the restriction. If there is no restriction then there is no question of ERP: Kamat..Kamat: ERP is not a restriction on my fundamental right. ERP is a restriction on State's power to interfere with a religious practice. The question which would fall first for consideration is - where is the restriction? .Justice Dixit: What is the restriction? You have come to writ court complaining that your rights are being infringed. Hon'ble CJ is saying where is your right is the question. Kamat: I am grateful as that is the heart of the case..Art 25(1), the canopy, width and ambit of rights is not capable of being put in a straitjacket formula. It is my practice of faith to wear headscarf which is restricted. If there is restriction where is the law? And I say there is no law: Kamat..Education Act is not a measure of social welfare or reform for the purpose of 25(2): Kamat..The intention to restrict has to be very clear by the Act itself. It has to say that 'hijab is not conducive for XYZ reasons and therefore we are making a law'. They cannot bring in Education Act and some rules. Restriction has to have direct relation to the object: Kamat..If the objective is hijab is regressive practice and they want uniformity, then the Act and Rules have to be clear on that: Kamat..Kamat cites Constituent Assembly Debates. What is being propounded has been expressly rejected in the CAD. Our framers expressly declined to do this..The State is trying to resurrect this and it is not permissible: Kamat..Constitutional morality was cited by them. It is not a restriction on fundamental right. It is a restriction on State's pwer. All the decisions - Sabarimala, Navtej are all pro-choice decision: Kamat..Today they are saying use Constitutional morality to defeat choice: Kamat..Kamat: They have argued if we do this, then others will come wearing other religious dress and symbols, Brahmin boys, etc. Constitutional decisions cannot be made on hypothesis..Your Lordships have to decide on facts: Kamat..Some submissions were made about other jurisdictions. Mr. Poovayya cited a European court decision from Turkey where he said headscarf ban was upheld. This decision was subsequently overruled. The Turkey Constitutional Court reversed the ban: Kamat..There is a Parliamentary enactment Commission for Protection of Child Rights Act, 2005. It talks about the rights of children. It has been defined by Parliament to be the same as the Convention on Rights of Child: Kamat..Convention on Rights of Child ratified by 196 countries including India and incorporated into Municipal legislations expressly recognises headscarf: Kamat..Kamat: It was argued that hijab is regressive practice, why should girl be covered. I am showing this Act to show that it is not regressive. It is only display of diversity..CJ Awasthi: Nobody is denying that hijab is not a recognized headdress. Kamat: It was argued that hijab is regressive practice, why should girl be covered with hijab. In response to that I am saying.... CJ Awasthi: That is with respect to dignity..They had argued on France. France and Turkey are the exceptions to Convention on Child Rights: Kamat..The net result is that people who want headscarves or turbans, like Sikhs are being denied on the pretext of GO. Their paramount right to education is being put on the backburner. The State should facilitate and creating an enabling atmosphere: Kamat..Right to education is a part of right to life under Article 21. If this rule is leading to a situation that people cannot access education of the State it is a challengeble under Art 21 as well: Kamat..CJ Awasthi: First clear your stand whether you want to say that this is an ERP, or whether you want to say that in order to attract Article 25 it is not necessary that it has to be ERP..Kamat: There is no doubt that this is an ERP. But I am also saying that the GO which puts the restriction is illegal. In the absence of valid restriction it is strictly not necessary for the Court to go into ERP. But if Court does it, then I say it is ERP..quran.com is not a translation. It is a compilation of various authors including Yusuf Ali: Kamat. Has any court in the country treated it as authoritative text? CJ Dixit..It is not an unauthorized translation but is a compendium of translations by reputed authors: Kamat..Hadith is also a source of Islamic law, it was noted in Shayara Bano case. It is not second degree but first source. Justice Nariman's judgment in Shayara Bano says Hadith is as authoritative as Quran itself: Kamat..None of the counsel from the other side have disputed the two judgments of the Kerala HC and the Madras HC where they came to the conclusion that purdah or burqa may not be essential practice, but headscarf is: Kamat..None of them have cited a decision that headscarf is not an essential part, I have cited at least 3 Indian judgments which categorically says headscarf is essential part of Islam: Kamat..Adv Kamat: I am ending with what Dr. Ambedkar said after finishing drafting of Constitution. He said "we have a great Constitution but if people who implements it is bad, it will turn out to be bad"..The way State has implemented, a good Constitution has been totally frustrated. But I am equally sure we are in the hands of a Constitutional court and we will make Constitution work and justice will prevail: Kamat concludes..CJ Awasthi says arguments to be finished tomorrow and order will be reserved tomorrow. Asks parties to give written submissions within 2-3 days.