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 was told by the Solicitor General (SG) Tushar Mehta that students challenging the hijab ban never wore hijab to educational institutions until 2021 but suddenly started the practice on advice by someone else.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.Read more about Day 8 here.Live updates from the hearing today below..Hearing begins.Advocate General for Karnataka Prabhuling K Navadgi will continue his arguments today..Court to AG: We will require the chargesheet filed, and the Karnataka order translated to Hindi. AG Navadgi: We will have it by end of day. Two chargesheets - both of them will be placed..AG Navadgi on Essential Religious Practice (ERP): If Lordships are to test it even under Articles 19(1) or 21, there is a link to Article 25. Entire fulcrum before High Court was on Article 25. The pleadings itself...they came to the court saying that it's just not school discipline..AG Navadgi: It was in this context that High Court examined.Justice Gupta: The question would be, even if we presume it is not an ERP- then what kind of practice would it be?.AG Navadgi reads the case of AS Narayana Deekshitulu v State of Andhra Pradesh. Judgment Link: https://indiankanoon.org/doc/28343/ AG Navadgi: "Whatever binds a man to his own conscience and whatever moral or ethical principles regulate the lives of men believing in that theistic conscience or religious belief that alone can constitute religion as understood in the Constitution which fosters feeling of brotherhood, amity, fraternity and equality of all persons which find their foothold in secular aspect of the Constitution.".AG Navadgi: Wearing of Hijab is a religious practice...This answers that.Justice Gupta: The argument is that everything in Quran is mandatory and sacrosanct..AG Navadgi: We are no experts in Quran, but this court in at least three instances said every word in Quran maybe religious, but not essential. Refers to the case of Mohd Hanif Quareshi v State of Bihar. .AG Navadgi: It's a fact that it is Quran. If everything in Quran is to be accepted...the question of essentiality test will be defeated..AG Navadgi: Every aspect of Quran, with great reverence, it may be religious but whether it is essential has to seen on the court's test. Justice Gupta: Mr Pasha has pointed out 5...he said it will fall under the head of an obligation..AG Navadgi: Today, we have many women choosing not to wear Hijab. Women who choose not to, don't become less Islamic. If it is so obligatory and compulsory...this is one of the tests we may have to apply..Justice Gupta: I know someone in Pakistan...a former judge of Lahore High Court. None of his two daughters ever wore Hijab. AG Navadgi: It is true!.AG Navadgi: To my knowledge, I have also not seen lot of women wearing Hijab. Justice Gupta: In Punjab, unfortunately, we don't have many Muslims since they migrated. But in Patna and MP- there was a Muslim family. No one wore Hijab..AG Navadgi: This argument that it is obligatory cannot be the answer. In fact, the constitutionally tested principle has to be applied..AG Navadgi refers to the Triple Talaq judgment in Shayara Bano v Union of India. Judgment Link: https://indiankanoon.org/doc/115701246/.AG Navadgi reads, "Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the learned Chief Justice. However, on the statement that triple talaq is an integral part of the religious practice, I respectfully disagree. Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.".AG Navadgi continues reading from judgment, "...it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.".AG Navadgi: The trend seems to be while interpreting Muslim Personal Law also, unless they show compulsory, obligatory and ERP- you cannot get protection under Article 25..AG Navadgi refers to the case of Javed v State Of Haryana. Judgment Link: https://indiankanoon.org/doc/1572027/.AG Navadgi discusses the case of Dr M. Ismail Faruqui v Union of India. Judgment Link: https://indiankanoon.org/doc/37494799/.AG Navadgi reads, "...offering at every location where such prayers can be offered would not be an essential or integral part of such religious practice unless the place has a particular significance for that religion so as to form an essential or integral part thereof.".AG Navadgi: The fact that non wearing of hijab is not even pleaded and no sources are relied to demonstrate that such nonpractice would result in change of the colour of religion..AG Navadgi: One of the submissions was that if you do not follow, you will be answerable...that is too general in nature. They obligation must be provided in the text itself..AG Navadgi: AS Narayana Deekshitulu v State of Andhra Pradesh has held that not every activity of the dress can be associated with the practice of religion..AG Navadgi: Wearing of Hijab may be religious, is it essential to religion? The High Court has said no. Justice Dhulia: What is essentially religious, is essential to religion you are saying?.AG Navadgi: No, what is protected under Article 25 is what is essential to religion. .AG Navadgi: There is a chart we have prepared...It is a compilation of cases. Every time the same thing has been followed..AG Navadgi: Before the High Court, every writ did not travel more than four pages and the claim of ERP was restricted to one paragraph. The prayer was declare it as an ERP..Justice Dhulia laughs: What kind of a prayer is this? AG Navadgi: These kind of prayers are practically obtaining a judgment in-rem (judgment for public). Once it's an ERP- it binds every member of Islam faith. Therefore, we should be more responsible in doing so..AG Navadgi: You are seeking a declaration for the entire religion. Justice Dhulia: Why didn't you say this is not an issue of ERP before High Court?.AG Navadgi: At one point of time, we were reluctant about interpretation of Quran. Our answer - the way we submitted before High Court was...We only said these tests are not satisfied..AG Navadgi: They cited a Quran which was downloaded from a website. Then, the court wanted to know which is the book to be relied on. We found in Shayara Bano and Shah Bano- Lordships relied on the Yusuf Ali commentary..AG Navadgi reads from Shayara Bano judgment, "Learned counsel representing the rival parties commended, that the text and translation in this book, being the most reliable, could safely be relied upon. The text and the inferences are therefore drawn from the above publication.".AG Navadgi: The right under Article 19...my submission is - if it's held that there's no right under Article 25 then what remains is the reasonableness of the school's action..AG Navadgi: There is an argument for right of expression - the words used are- right to wear Hijab in a school forms fundamental right of freedom of expression..AG Navadgi: My submission is two fold- first, what requires to be examined is was there a restriction on wearing Hijab? The action has been coloured and clouded in many things..AG Navadgi: It is Rule 11 which gives a power to an institution to prescribe a uniform. Therefore, whether the rule 11 is a legislation which deals with any of the rights under Article 19?.AG Navadgi: This legislation does not deal with any rights under Article 19. Justice Dhulia: Come again, what are you saying?.AG Navadgi: In Bachan Singh case, it was held is that if a legislation incidentally entrenches on Article 19- that legislation cannot be invalidated. Justice Gupta: The effect has to be seen..AG Navadgi: The question is- whether it is a remote effect or proximate effect. Our Karnataka legislation is not for dress. Justice Gupta: Dominant objective....AG Navadgi: If incidentally, there is an infraction - that legislation cannot be called into question..AG Navadgi refers to the case of Bachan Singh v State of Punjab. Judgment Link: https://indiankanoon.org/doc/307021/.AG Navadgi: If a student wears a wrong uniform and the teacher sends him back, can the student move court and say there is no ground to impose restrictions on freedom of expression?.Justice Dhulia: You are saying, the Act had to do with school administration but if incidentally we violate your fundamental right, then nothing can be done. .AG Navadgi: Let me put it differently. If the dominant purpose of the legislation is somewhere else, but incidentally the effect is something else then Article 19 (2) cannot be pressed. Justice Dhulia: I will never understand this..AG Navadgi: It looks like a far-reaching proposition, but I will try and demonstrate. Innocuous situation of prescribing a uniform and disobey of the same...forget this situation. A student can come before Your Lordships saying Article 19(1)(a) is being violated..AG Navadgi: Intention of the legislation was just to bring about disciple. Justice Gupta: Probably you want to say you are not prohibiting even ancillary, you are only regulating. AG: Yes..AG Navadgi: Particularly with reference to a particular action...can you ask the State or school administration to justify every action? Justice Dhulia: Another question that has been put to us- Karnataka Education Act nowhere says this should not be done..Justice Dhulia: You are putting restrictions by executive order, if this is violative of Article 19, it can only be done by law. Is this a law?.AG Navadgi: I only say follow Rule 11. Even if Government Order is withdrawn...Rule 11 empowers schools to prescribe uniform. It is the source of power. Unfortunately, they have not challenged the vires of the Rule..Justice Dhulia: Some schools may not have uniform, then how can you stop them? Then it says unity and some word... what is...? AG Navadgi: In all govt schools, its uniform is prescribed by government. Karnataka provides free uniforms to students from 1st to 10th..AG Navadgi: Secondly, in so far as per university is concerned - college development council shall prescribe uniform and students are bound..AG Navadgi: Third is, if no uniform - please wear something which inspires unity and equality without effecting law & order of the region..Justice Gupta: So if someone wears headscarf are they affecting unity etc? AG Navadgi: We don't come in the way if the school says we do not prohibit it..Justice Gupta: This uniform that the State provides, is it same uniform in 11th & 12th? AG Navadgi: No, these are different. PUC (Pre-University Course) age is between 15-17. This age according to me is a very impressionable age. We are exposed to so may things..AG Navadgi: The requirement of discipline is much more at the time, according to me. Therefore, I think the idea of uniform...it brings every student on the same plane irrespective of economic background.AG Navadgi: Secondly, you rise above religious transcendence as said in Article 51-A. Justice Gupta: Of course, it's not enforceable..AG Navadgi: This Rule 11 has not been called into question. It continues to empower the administration..AG Navadgi: In the alternative, on Article19 (1)(a), I want to submit something in five minutes..AG Navadgi: Right to speech & expression is on communication, information etc. This concept of a dress is possibly under NALSA judgment..AG Navadgi: The NALSA was a transgender's case who wanted to express their identity so they said it was so closely connected to right to wear a dress therefore it be recognised..AG Navadgi: The other side has proceeded under the assumption that there is a right without showing how right to wear Hijab is right to expression..AG Navadgi: It cannot be easily said that right to wear Hijab forms part of Article 19(1). Justice Gupta: Are right to speech and expression correlated? AG Navadgi: They can be independent or codependent..Justice Dhulia: Mr Sibal said that Hijab can be worn outside school. There you have no problem? AG Navadgi: Yes. No problem. Justice Dhulia: So, does she lose her right at the school gate?.AG Navadgi: There is nothing like an absolute freedom, every freedom can be restricted and controlled. Let us say I wear Hijab in a public place but I'm not allowed in school - it only means that fundamental right is restricted in manner known to the Constitution..Justice Dhulia: Under what ground are you restricting? AG Navadgi: It can be restricted under Article 19(2). Justice Dhulia: Public order, morality, health.. under which head?.AG Navadgi: Everybody has a fundamental right but it can be exercised based on exceptions. The right to wear a Hijab in a public space is a Art 19(1)(a) right or Art 21? Article 21 can be restricted..Justice Dhulia: Article 19(1)(a) gives that right, and preamble gives that right. AG Navadgi: When I enter an educational institution, I am governed by Education Act. The question of violation of fundamental rights does not come..Justice Gupta: So, your argument boils down to Bachan Singh? Dominant object is education. AG Navadgi: The assumed right under Article 19(1)(a) requires to be tested with much caution..AG Navadgi refers to Maneka Gandhi v Union of India, "Every activity which facilitates the exercise of a named fundamental right is not necessarily comprehended in that fundamental right nor can it be regarded as such merely because it may not be possible otherwise to effectively exercise that fundamental right.".AG Navadgi: It has to be demonstrated that wearing of Hijab is a right to expression. They have said it is part of faith...it's not expression..AG Navadgi: There are two or three decisions on autonomy given to educational institutions and the contours of judicial review..AG Navadgi: The restriction is only inside the classroom. When it was asserted militantly that we want to wear Hijab and retaliated by others. I, as a principle, my concern was to run the school and bring children together..AG Navadgi: In the facts of the case, there was a possibility of a public order issue. I don't want to import personal knowledge. As a citizen of the State, I was witness..AG Navadgi: It was a group of students coming to school in Hijab and banging the gates. Not just one student who came with Hijab. Justice Dhulia: It started in one school and then spread? AG: Yes yes!.AG Navadgi: The ground reality was something else. It has never happened in Karnataka. It would be very difficult for me to bring on record certain aspects. There were some groups.. the action must be viewed from this..AG Navadgi discusses Article 21, reads judgment in case of KS Puttaswamy v Union of India..AG Navadgi: Can the right to wear a dress be a part of right to privacy and be exercised everywhere? The answer is not so simple..AG Navadgi reads from the judgment in Puttuswamy: This answers Mr Sibal's query. Justice Dhulia: Your are drawing parallels between buildings and....AG Navadgi: Justice Nariman had said that this right to privacy has to be seen on a case to case basis..AG Navadgi: This right to wear Hijab cannot be examined based on a general statement in Puttuswamy..AG Navadgi reads, "In view of the foregoing discussion, my answer to Question 2 is that “right to privacy” is a part of fundamental right of a citizen guaranteed under Part III of the Constitution. However, it is not an absolute right but is subject to certain reasonable restrictions, which the State is entitled to impose on the basis of social, moral and compelling public interest in accordance with law.".AG Navadgi summarises: The action of the State must be viewed from the language it contains. All we did was reiterate that the schools follow Rule 11. .AG Navadgi: This could have been overcome if there was a right under Article 25. Since it's not an ERP- it becomes an issue of student vs school, not student vs State..AG Navadgi: A right to expression has not been established. My action cannot be tested in exception under Article 19(2). Lastly, under Article 21- it has to be examined on case to case basis..AG Navadgi: This is ultimately about a student's relationship with the school. I deny that the State has acted against a particular religion. .Advocate General for Karnataka Prabhuling K Navadgi concludes his arguments. Court breaks for lunch. Will hear ASG KM Natarajan at 2 pm..Hearing resumes..ASG Nataraj: The petitioners entire case is based on the premise that they have an absolute right. The State has not touched any religious aspects, or issues. Let me clarify Hijab is not banned.ASG: The State has only prescribed that you can prescribe uniform which is religion neutral. We have neither prohibited or promoted any religious activity..ASG: School is a secure place, and what is being carried out in school is a secure activity..ASG takes court through Article 19..ASG: Total free right can be given...that is one way of looking at things. Other way is, when you come to a secure institution- everyone has to come with uniform. Classification based on religion is not permissible..ASG: The positive state action has maintained Article 14. Justice Dhulia: Please read Article 14. .Justice Dhulia: So, it also satisfies equal protection of law?ASG: Yes. It is students as a whole has been made a class. Religion is not the basis..Justice Dhulia: Equal protection of law has a different meaning. ASG: Classification is permitted there. You have to treat students as a class..ASG: Otherwise what would happen is there would be chaos in educational institutions. One person will say Hijab, other will say gamcha (towel). Secular institution is not meant to recognise any kind of religious symbols..ASG: The state action promotes Article 14. ASG takes court to Article 30: It is not a restricted right, it looks like it is an absolute right. There are no riders.ASG: It's been held that notwithstanding this language, rights are not absolute..ASG takes court to the Karnataka Education Act. Justice Gupta: That's been put before us. ASG: I will just show objects and reasons, and preamble..ASG: Such affirmative action is not only permissible under Article 14 but also desired..ASG cites judgments for the interpretation of the Articles put before court..ASG: State has taken the step to promote oneness. Nobody can complain in this type of secular institutions. It is the need of the hour..Justice Dhulia: In other words, you are preventing them to enter school because you're promoting national integration? ASG: No, we are not preventing anyone. You follow prescribed uniform. Hijab may be an incidental question. We are not seeking out any religion..Justice Dhulia: The net effect is that if someone wants to enter wearing a Hijab, you won't permit it? Say yes or no. Why won't you give a straight answer? ASG: That school will decide. As a state we respect everything...Justice Gupta: But that is outside school? ASG: Yes..ASG: When it comes to public places.. public can unite together.. certain restrictions have to be accepted keeping the constitutional ethos in mind..ASG: Tomorrow a person can say burqa is an absolute right, and they go to airport and say I will not show my face. Then one cannot say sacrifice is a religious right. Can a Hindu come and perform hawan (Hindu ritual making offerings to fire) at India Gate or in court?.ASG: All religious rights have to be balanced. No one can say I have an absolute right..ASG: It is a simple case of discipline in an institution. No religion or person has been discriminated against. All have been protected equally. State concludes arguments..Senior Advocate R Venkataramani appears for teachers-respondents: To project one right into another can be problematic. That's what's probably happening in many Constitutional issues..Sr Adv Venkataramani: The contours of freedom of expression have a certain domains, relevance. When a right to religion by itself comprehends every aspect of a religion, then you don't have to latch on to freedom of expression..Justice Dhulia: Can you make it simpler? Sr Adv Venkataramani: The varied constructional provisions in this case are not invokable. Justice Gupta: That has always been a practice..Justice Gupta: They are claiming a right under Part III, no matter which the Article..Sr Adv Venkataramani: What is it that is offensive to Article 25? School is a unique public space where public order will go through metamorphosis and have a different connotation..Justice Gupta request Sr Adv Venkataramani not to read. Justice Dhulia: So, your argument is fundamental right outside school is there and inside school they will shrink? Sr Adv Venkataramani: As long as provisions of Article 25 are transgressed it not....Sr Adv Venkataramani: Article 25 has to be read in the school scenario. They are citing the Tandava case, or wearing the Kirpan. Justice Dhulia: What is the teachers point of view?.Sr Adv Venkataramani: I want a free interaction with the students without any walls of separation. Justice Dhulia: So, Hijab makes a wall of separation? Sr Adv Venkataramani: A school must be free from all these elements, distractions..Justice Dhulia: One can also say, this is an opportunity of being exposed to diversity. We have students for all cultures, religions. Be culturally sensitive towards them. Sr Adv Venkatramani: How will we inculcate those values?.Sr Adv Venkataramani: Where will these assertions of identity stop? Justice Dhulia: These students will be facing this world rich in diversity. In a way, it's an opportunity to inculcate these values..Sr Adv Venkataramani: I work in an environment where individual assertions of identity can be a hindrance. Only in their absence can you begin to respect them. Teachers' hands will be tied..Justice Dhulia: No one is claiming superiority. Sr Adv Venkataramani: It is bound to happen. Therefore, the nature of school is very unique public space. .Justice Gupta: Mr Venkataramani, let us proceed, you submit your written submissions. Sr Adv Venkataramani: Just a few more points.Sr Adv Venkataramani: In a matter like Hijab, there is no conscience element. It's faith. Justice Dhulia: How can you say that? Venkataramani: It is entirely a Quranic, obligatory basis. It's all about religion, and nothing but religion..Sr Adv Venkataramani: If those concepts are cleared, Article 35 gives a clear answer. Once it falls within Art 25, to travel beyond Art 25 you need some other justification.Sr Adv Venkataramani: In this case, is there an intent to discriminate? The answer is no..Justice Gupta: We request you to conclude your arguments today. You give us a summary. We cannot read this whole 500 pages. Sr Adv Venkataramani: The idea is to give a global scenario. .Sr Adv Venkataramani takes court through judgments of the European Court of Human Rights..Justice Gupta: This is really not relevant today. Please. Sr Adv Venkataramani: The concepts are the same. The question of faith, religion, manifestation can come in any jurisdiction whatsoever..Sr Adv Venkataramani: What I am trying to point out is, Singapore has faced similar problems. There will be diversity issues in many of these countries..Justice Gupta: We request you to give a summary..Sr Adv Venkatramani: The concept of public order will certainly undergo a change in meaning and contours in the case of a school..Sr Adv Huzefa Ahmadi: This the first time there was a teacher's perspective.. is it their case that no religious symbol is allowed? Court: That is what state has said very clearly..Sr Adv V Mohana appears for an assistant professor: The question here is again and again religion. But the issue is about education..Sr Adv V Mohana: We have to see it in the Indian cultural atmosphere. It is a state object to promote education. In furtherance of which the enactment has been made..Sr Adv V Mohana: As a teacher it is my moral and legal duty to ensure that disciplined atmosphere is maintained. .Sr Adv Dama Seshadri Naidu: 50% of Nobel Laureates are from one religion. In America, the most successful personalities have been born between Janurary and March. Please ask any conditioned mind, they will say there must be a reason..Sr Adv Naidu: It's because that particular religion has delinked religion from learning. Those between January and March have a head start. Justice Dhulia: What is the point? Sr Adv Naidu: The point is that as a teacher - I want a student who is not conditioned..Sr Adv Naidu: I want students who are free to think, and once they come to me- I can teach them. Justice Dhulia: Where are you, here or there? Sr Adv Naidu: I'm nowhere! Because a teacher cannot have an ideology..Sr Adv Naidu: Schools need to have a zero tolerance approach to uniforms. Learning is 360 degree..Sr Adv Naidu: My humble submission is that, let everyone bow down to the Constitution..AG Navadgi: We will place the chargesheet in sealed cover. Sr Adv Ahmadi: Why is anything in sealed cover? Justice Dhulia: Why should we consider it? Let law takes it own course as far as this is concerned. Let's leave it at that..Justice Gupta: We will give you all one hour. We are losing our patience (laughs). Hearing to continue tomorrow. Bench rises.