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 previous hearing, a bench of Justices Hemant Gupta and Sudhanshu Dhulia asked the petitioners as to how far Constituent Assembly Debates (CAD) can be relied on by the Court while examining the scope of Article 25 of the Constitution.Read more about Day 1 here.Read more about Day 2 here.Read more about Day 3 here.Read more about Day 4 here.Read more about Day 5 here.Read more about Day 6 here.Read more about Day 7 here.Live updates from the hearing today below..Hearing begins..Senior Advocate Dushyant Dave is taking the court through judgments on the extent of Article 25..Sr Adv Dave refers to the judgment in Sardar Syedna Taher Saifuddin v State of Bombay..Sr Adv Dave: "In the face of the language used, no distinction could be drawn between beliefs that were basic to a religion or religious practices that were considered to be essential by a religious sect on the one hand and on the other beliefs and practices that did not form the core of a religion or of the practices of that religion. The phraseology employed cut across and effaced these distinctions.".Justice Gupta: There is no comment about the other judges, whether they are agreeing with Justice Iyengar. Sr Adv Dave: No, he is concurring. Justice Dhulia: Where is all this leading?.Sr Adv Dave: That Essential Religious Practice (ERP) was never a ground for judicial pronouncement. Both Justice Nariman & Chandrachud make a serious error in saying ERP has been identified..Sr Adv Dave quotes, "that as such a religious denomination it is entitled to ensure its continuity by maintaining the bond of religious unity and discipline.." Hijab is a bond that holds the community together, he adds..Justice Dhulia: Can't we deal with the situation without going into Essential Religious Practices? Sr Adv Dave: But the High Court has only dealt with ERP..Justice Dhulia: They were dealing with the February 5 order which says this judgment etc. They had to perhaps deal with that. Sr Adv Dave: But those three judgment were completely irrelevant. This was put to the High Court..Sr Adv Dave reads the judgment in the case of Tilkayat Shri Govindlalji v State Of Rajasthan..Sr Adv Dave reads, "In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not.".Sr Adv Dave: "In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the...".Sr Adv Dave: "..formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down." Sr Adv Dave: Here community has one voice!.Sr Adv Dave: The court has clearly drawn the conclusion. He is clarifying when there is dispute between the community - court has to decide based on evidence..Sr Adv Dave: I urge that the test is not essential practice, but religious practice..Sr Adv Dave: Everybody looks at almighty in different ways. Those who go to Sabrimala wear black clothes, that's the tradition. Everybody has a right to enjoy religious freedom in the most personalised and individualistic way possible..Sr Adv Dave: The limitation is only that you don't hurt anyone..Sr Adv Dave recapitulates important points from the judgment in the case of Commissioner, Hindu Religious Endowments, Madras v Sri Laskhmindra Thirtha Swamiar of Sri Shirur Mutt..Sr Adv Dave now quotes the judgment in Bijoe Emmanuel v State of Kerala. https://indiankanoon.org/doc/1508089/ This is very important because it interprets statute which is Pari Materia with Karnataka Education Act, he adds..Sr Adv Dave reads, "If the two circulars are to be so interpreted as to compel each and every pupil to join in the singing of the National Anthem despite his genuine conscientious religious objection, then such compulsion would clearly contravene the rights guaranteed by Art. 19(1)(a) and Art. 25(1).".Sr Adv Dave: I would say Article 25 is an article of toleration..Sr Adv Dave: I have seen personally many a times, uniform is an unnecessary burden on majority section in society. Most can't afford. I see with my caddies in the golf course..Justice Gupta: In many schools, there can be disparity. Therefore, uniform is... you can't see richness or poverty. Sr Adv Dave: No, I am for uniform. Every institution likes identity. Justice Gupta: We have very limited question- whether headgear can be allowed..Sr Adv Dave refers to the judgment in Kesavananda Bharati v State of Kerala. https://indiankanoon.org/doc/257876/ He points out important passages to court..Justice Gupta: Can we say individual opinion in constituent assembly is relevant? Sr Adv Dave: Just to understand their intent and mindset. Justice Dhulia: Purposive...Purposive interpretation..Sr Adv Dave refers to a judgment to answer this question. Justice Gupta: One member of constituent assembly had individual view. Sr Adv Dave: It's like today's parliamentary debate..Justice Gupta: If there is ambiguity, some reference can be made. When statute is clear... Sr Adv Dave: Article 25 is crystal clear, I bow down but constituent assembly debates cement that..Sr Adv Dave: Completely incorrect conclusion by the High Court. In case High Court is right...Young Lawyers is now facing review. The finding is completely contrary to Shirur Mutt & Ratilal Gandhi..Justice Dhulia: What is the meaning of this? (refers to a portion of the High Court's judgment) Justice Gupta: The reasoning appears to be if ERP contravenes right to equality, it cannot be given effect..Sr Adv Dave differentiates between Sabrimala judgement and Hijab case. Justice Gupta: There petitioners did not have fundamental right to enter temple... Sr Adv Dave: No, My Lords...now it has been established that everyone can enter temples..Justice Dhulia: So you are also arguing that this is wrong interpretation of Young Lawyers judgment? Sr Adv Dave: Yes! The girls want to wear the Hijab. So, whose constitutional right is violated? The other students? The school?.Sr Adv Dave: The aspect of public order... that's the only ground that can be argued against us.Reads Superintendent v Ram Manohar Lohia. https://indiankanoon.org/doc/1386353/.Sr Adv Dave: This exception is not available to the state. Nobody's peace, safety is violated and there is certainly no danger to tranquility. This judgment has been followed later in case of Madhu Limaye case also..Sr Adv Dave: Articles 14, 19 & 21 all come into play together. I have referred to the case of IR Coelho v State of Tamil Nadu..Sr Adv Dave: In this case dignity is very important. Like, how a Hindu woman covers her head- it is very dignified. Justice Gupta: The definition of dignified has changed a lot, and keeps changing..Sr Adv Dave: Dignity is very important.. this was subsequently followed in Maneka Gandhi..Sr Adv Dave refers to Francis Coralie Mullin v The Administrator https://indiankanoon.org/doc/78536/.Sr Adv Dave reads, "But the question which arises is whether the right to life is limited only to protection of limb or faculty or does it go further and embrace something more. We think that the right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing one-self in diverse forms, freely moving about and mixing and commingling with fellow human beings.".Justice Gupta: These all principles are well-know. Sr Adv Dave: No, I am sure they are well known. I am just drawing Your Lordships attention..Sr Adv Dave take court to his compilation: Now, Mr Mehta is here - I am sure he will have reservations..Sr Adv Dave: I am citing in support of Justice HR Khanna's dissenting opinion where malice in law was recognised..Sr Adv Dave: Why is it that suddenly after 75 years state thought of bringing this type of prohibition? There is nothing on record to show that there was any just reason or justification. It came like a bolt from the blue..Sr Adv Dave: Series of acts in Karnataka targeted minority community. SG: We are not in a public platform. Please stick to pleadings. Sr Adv Dave: I know, Mr Mehta you are here, welcome..Justice Dhulia: Let's not... Sr Adv Dave: There is no basis for them to pass this circular. My learned friend is not right- in the writ petition specific averments have been made..Sr Adv Dave refers to the petition. Refers to Sulli Bai case. Justice Gupta: That was in Maharashtra. Sr Adv Dave: Women from across the country. All I am saying is, why now? After 75 years..Sr Adv Dave (takes court through the Karnataka Education Act): Is it the purpose of the Act? I say no. Banning of Hijab does not serve the purpose of the Act. Justice Gupta: This has been argued..Sr Adv Dave: Law is crystal clear. Executive order cannot travel outside ambit of statute. This circular is clearly outside the ambit of the Act.Justice Gupta: Circulars can supplement the Act, not supplant..Sr Adv Dave: There is a direct judgment of Kerala High Court is supporting petitioners. That was not appealed. In Kendriya Vidyalayas also it is allowed. Three irrelevant judgments are relied upon in the circular..Sr Adv Dave refers to a judgment relating to uniform discipline. Sr Adv Dave: 11th & 12th standard are not a regimented force. We are wearing uniform, we are also wearing Hijab in the colour of the uniform..Sr Adv Dave: It's not just a constitutional right...it is also an International Convention. This court has always interpreted in favour of International Convention..Sr Adv Dave quotes Swami Vivekananda, "I am proud to belong to a religion which has taught the world both tolerance and universal acceptance. We believe not only in universal toleration, but we accept all religions as true. I am proud to belong to a nation which has sheltered the persecuted and the refugees of all religions and all nations of the earth.".Sr Adv Dave: These are the words I respectfully submit. Tagore said, we must awake in a country where fear does not exist. We cannot put fear in the mind of people..Senior Advocate Dushyant Dave concludes arguments..Solicitor General Tushar Mehta: I believe the other side has concluded. Court: We will not allow anyone else to argue. SG: We have all troubled you. On our side, the AG, Mr Natraj and myself will only argue..SG: We will not repeat. We have divided the issues. Our side should be over today. Solicitor General begins arguments..SG Mehta summarises petitioners arguments: Broadly, my submission on the point of Constitution Bench submission is this...Justice Gupta: Mr Dave has argued something different. SG: Any religious practice also, there is a law on how that is established..SG Mehta: Let me start with - the order in question was required for more than one justifiable reasons. This order does not prevent a particular community students to not wear a particular apparel. The order says uniform- has to be uniform..Justice Gupta: A circular has been referred to where it is said that mandating uniform is illegal. SG Mehta: High Court has found that document to be unsubstantiated..SG Mehta: Two facts- 1) Till 2021, no girl student was wearing hijab nor this question ever arose. 2) It would be disservice to contend the circular only prohibits hijab. Other community came with saffron shawl, that is ALSO prohibited..SG Mehta: One more dimension- if the govt would not have acted the way it did, it would have been in dereliction of its Constitutional duty..SG Mehta takes court through the chronology of events. .SG Mehta: So far, the uniform part of essential discipline in schools was being scrupulously followed. Then a movement started on social media by an organisation called Popular Front of India. It was designed to create an agitation..SG Mehta: There were continuous social media messages that start wearing Hijab. This is on record. I have filed in cover details of that. This was not a spontaneous act. It was a part of larger conspiracy. Children were acting as advised..Court: Is this part of pleadings? SG Mehta: Yes, I will show. .SG Mehta: This is not the childrens' original thinking. No one was wearing Hijab since 2004 as recorded by High Court. Suddenly there was an agitation. Court: Is the chargesheet there? SG: Yes..SG Mehta: They were never wearing headscarves since 2004 or before that..SG Mehta: Suddenly everyone starting activating that we have a right. Agitation, children at the... Justice Gupta: In one of the writs, there is an averment that they were wearing Hijab and it was stopped. SG: This is an unsubstantiated assertion..SG Mehta: The uniform code has been in vogue since 2004. It has statutory backing. .SG Mehta: They don't say Hijab, they say all students will wear prescribed uniform..SG Mehta: The far-fetched arguments that the government is throttling the voice of minority etc. No, the government had to intervene in the circumstances because of the public order being disturbed. Justice Dhulia: What public order? SG: There were agitations..SG Mehta: Students were banging the gates, saying let us come with Hijab then others were coming with saffron gamchas (towels)..SG Mehta reads the Government Order: We are referring to both saffron and Hijab..SG Mehta: It's not that one community will be prevented from wearing one particular apparel. All communities have to wear uniform prescribed....SG Mehta: It is religion neutral direction- does not prevent one community. It says uniform must be uniformly implemented by students of all religion..SG discusses the power to issue the circular.Justice Gupta: The argument is that, this Act is meant to regulate the institution not the students. Section 45 is a rule making power, but it has to have something arising out of the Act..SG Mehta: We have directed the institutions only that you have your uniform implemented and institution is not just the building..SG Mehta: Section 133 gives power. (Reads).SG Mehta: The power to issue direction is to direct institutions to comply with a particular rule. There is a statutory rule. State government tells school that ensure there is no disparity between what students are wearing. It's perfectly within statutory power..SG Mehta: No saffron gamcha and no Hijab. .Court breaks for lunch. To continue hearing the case at 2 pm..Hearing resumes..SG Mehta: My first point is over.. the statutory power is there. The state has passed an order directing institutions not students to ensure compliance by a religion-neutral order..Justice Dhulia: You are saying your emphasis was only on dress. SG Mehta: Yes. We did not touch on any aspect of religion. Justice Dhulia: Had there been no uniform, you would not have objected? SG Mehta: Then, the last line of the order takes care of that..SG Mehta reads order, "where there is no uniform prescribed, students shall wear dress that goes well with idea of equality and unity."SG Mehta: So, no identity of a particular religion. You are going as students. .Karnataka Advocate General Prabhuling K Navadgi explains nuances of order's translation from Kannada to English..SG Mehta: Even students are recipient of statutory obligations under the Act. (Reads the preamble of Karnataka Education Act).SG Mehta discuss Essential Religious Practice (ERP): I will show a Constitution Bench judgment. Judgment Link - https://indiankanoon.org/doc/1262157/.Justice Gupta: There is contradiction between two judgments between Shirur Mutt and Durgah committee, they are saying. SG: There is none. Bench said it is safer. Since Shirur Mutt is a seven judge bench..Petitioner counsel intervenes: When first five judge decided then, it went for review. In majority view, Shirur Mutt said you have to leave to religion to decide and Durgah Committee said court will decide. That's the conflict..SG Mehta: Can I complete? Justice Gupta: This was our query..SG Mehta: The argument essentially is the bench of two judges cannot decide. They say refer to larger bench. I will be able to satisfy that it is essential religious practice for Article 25....SG Mehta: There are settled guidelines. Every time Your Lordships cannot refer to larger bench. Justice Gupta: It is for our clarification. SG: In each case.. suppose I say wearing tilak is my right.. but justification for reference is not made out..SG Mehta: Somebody will have to go into it. Suppose Ananda Marga say along with procession and Tandav Nritya, drinking wine is also essential. What will court say?.SG Mehta: Countries where religion itself is born does not follow this practice then can we say it is so essential? In case of Sikhs, Kara and Pagdi- you cannot think of Sikhs without it..SG Mehta: No assertion shows that this started with the founding of the religion. The practice must be so compelling... they could've said 90% people are doing, if I don't do this I'll be excommunicated..SG Mehta: The petitioners have not made any pleadings to show that the practice is so compelling that non adherence will... Justice Dhulia: Who will decide that? That's precisely what's been decided by the High Court..SG Mehta: The High Court should have avoided that. If a petitioner raises half-hearted pleadings and the High Court does not deal, it will be accused. Essential practice is not foreign. The parameters are fixed..SG Mehta: Tomorrow I can say in a particular religion, drinking in public is essential.Justice Dhulia: That will be hit directly by Articles 19 and 25. What you are saying will be hit by public order, morality and health..SG Mehta: Maybe if I drink alone in public. What if I am from a religion which requires me to stand under the sun and drink in the morning, someone will have to decide this..SG Mehta: If I come on the street and say... take an extreme example... it is part of my religion to dance nude in public. Somebody will say it's against public order and morality. I'll be prevented by local authorities. Who will decide?.Justice Gupta: I don't think this extreme example is appropriate. SG Mehta: Okay, if someone says I want take Rath Yatra during Covid. I will say it is essential practice. Justice Gupta: I was part of the bench which permitted Rath Yatra..SG Mehta: I am sorry for my inability to communicate. My submission is at some point, the court will have to decide whether it is Essential Religious Practice. Shirur Mutt does not stop court..Justice Gupta: You are right, the court has to decide, but interpretation of Quran has been referred to. They are saying that khimar was translated to Hijab and it is essential..SG Mehta: Maybe Holy Quran says so. When they assert that right before court of law. Merely mentioning wearing of Hijab does not make it Essential Religious Practice, it will make it permissible or ideal practice..SG Mehta: Is it so compelling that people who do not adhere to are excommunicated or I cannot think of my existence without it?.SG Mehta: What is the purpose of uniform? It is for equality, equity, and uniformity. When you have to cross that threshold, your test has to be higher. Does it exist from time immemorial?.SG Mehta: Ok, Quran mentions it. Is it so compelling? Where nations are Islamic countries - women are fighting against Hijab.Justice Dhulia: Which country is that? SG: Iran. Mention in Quran means it's permissible. Maybe, ideal. Not essential..SG Mehta: Now, kindly see the third limb of submissions. Its a very interesting question of law based on Article 19 (1) (a) - Freedom of expression. .SG Mehta: There is a very interesting discussion on the right to wear what you want to wear, where you are under regulatory mechanism of uniform. Can you express beyond uniform? I have some foreign judgments..SG Mehta refers to an American judgment where a lawyer appeared in court wearing a baseball hat. Judgment Link: https://casemine.com/judgement/us/59146622add7b04934299807… .Justice Gupta: Is this Supreme Court? SG Mehta: These are persuasive. It is a State level Appellate Court..SG Mehta now refers to a Supreme Court of United States. SG refers to an article written by him before this controversy began. Article Link: https://barandbench.com/columns/lawyers-attire-much-ado-about-nothing….Justice Gupta: We have a parallel of Justice Chandrachud's judgment for an airman. The level of disciple in police and armed forces is much higher. SG: Level of disciple cannot differ.Justice Gupta: It has been argued that it is not regimentary..SG Mehta: Discipline cannot depend on institution, so far as dress code is concerned. I can understand different punishments. In army you'll do 1000 pushups maybe. Disciple is discipline. This discipline does not infringe any harm on them..Justice Dhulia: They are saying we'll wear uniform. They are not saying we won't. Suppose a child wears muffler... SG Mehta: That does not identify religion. Justice Dhulia: That is very vague..Justice Gupta: Your argument is uniform is uniform, there cannot be substitution or addition. SG: Yes. Justice Gupta: If a leather belt is part of uniform and someone says I don't wear leather....SG Mehta: A dress cannot show religious identity when in secular education. If tomorrow Bar Council prohibits tilak, then it will have to go. Unless we can show it is Essential Religious Practice, which it is not..Justice Dhulia: What about glasses? If someone needs? Or a muffler?SG Mehta: If it doesn't highlight your religious identity...Justice Dhulia: If a cap or muffler can be of same colour, why not Hijab?SG Mehta: Cap if it doesn't depict religion, it can be worn..Justice Dhulia: Then it is problem of Public Order? SG Mehta: They are saying my religious belief entitles me to wear it. Justice Dhulia: If they say, I'm wearing it to protect from cold...Justice Gupta: In Karnataka, it is not that cold. (All laugh).SG Mehta places before court judgments dealing with the issue from foreign jurisdictions..SG Mehta: The standard of European Court of Human Rights is much lower than us. Even then they say... Justice Dhulia: Our secularism is very different from that of France..SG Mehta: No, this is not the court of France.Justice Gupta: It was case against the French Republic. SG Mehta: They said nothing doing..SG Mehta summarises his arguments: - There is a statutory power to prescribe uniform by schools. - There is a statutory power in the govt to issue directions to school to ensure compliance with rules. - There was a good and reasonable justification for exercise of power.- It was a non arbitrary exercise, making it religion neutral. - They went before Court claiming it is essential religious practice but could not establish as per settled criteria.- There were no assertions, pleadings nothing. .Justice Gupta: One verse of Quran is referred. SG Mehta: That shows permissible, not essential..Justice Gupta: It was argued that on judgment day, it will be seen. Mr Dar had argued this. SG Mehta: These are beliefs that all religions have. We have made people fearing religion. I should be God loving, not God fearing..SG: The belief is not enough to show essential. Justice Dhulia: In Quran they have said "farz"(duty). It's not directory. SG: My perception of the Holy Book can never be... therefore, the Supreme Court had to lay down tests..SG: I am not criticising any community. In some countries, women cannot drive. Ultimately, the law is, how you established Essential Religious Practice. When you come to court, then you have to cross a different threshold..SG Mehta shows Supreme Court judgments on test for Essential Religious Practices..Justice Gupta: Mr Pasha has pointed out five essential practices of Quran. Pasha appears and explains..Justice Gupta: The Kerala judgment says four essential parts. Are we dealing with Shariat law? Is my reading correct? Adv Pasha: Shariat includes...in the Islamic world, counties are divided into three..SG Mehta: Anything done can be included in faith. Then there won't be any system in society.Pasha: It's not that amorphous. SG Mehta: It is a matter of statutory implementation of a uniform uniform!.SG: This can't be a subject matter. Last- kindly see the words of Dr Ambedkar. He contemplated this situation..SG: This is not any religion- tomorrow I might say that someone has killed my brother, and he will not rest in peace till I murder and seek revenge. Justice Dhulia: The court has relied on commentaries which they have held are authentic..Justice Dhulia: How can you decide which commentary is correct?.SG Mehta: The court analysing any religious scripture must be avoided. But for me, this is not about religion. That is how secular country works. You can express your views on a crossroad, not by tying something....SG Mehta: Suppose I tie something on my head with a beautiful message? Solicitor General Tushar Mehta concludes arguments..Advocate General of Karnataka Prabhuling K Navadgi begins arguments..AG Navadgi: According to me there is no conflict between the Shirur Mutt and Durgah case. Right from Shirur Mutt to now, there is no question as to whether a constitutional court can go into the question of Essential Religious Practice..AG Navadgi: State can regulate secular activity related to the religion, but not religion itself..AG Navadgi: Shirur Mutt did not say you cannot go to court to decide..AG Navadgi: The next judgment which followed Shirur Mutt was the Durgah committee case..AG Navadgi: An impression was sought to be given that Shirur Mutt protects every religious practice and Durgah deviated for Essential Religious Practice. But close perusal would show that the concept of ERP originated in Shirur Mutt..AG Navadgi: Protecting every aspect of religion becomes practically impossible. Therefore, the theory of ERP was evolved..Justice Gupta: There is a meeting today, I think we'll continue tomorrow. Court rises. Hearing to continue tomorrow morning.